Harbour Port Consulting v NSW Maritime

[2011] NSWSC 813

Supreme Court

New South Wales

Medium Neutral Citation:	Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Hearing dates:	06/07/2011, 07/07/2011
Decision date:	05 August 2011
Jurisdiction:	Equity Division
Before:	McDougall J
Decision:	Interlocutory injunction dissolved. Summons dismissed with costs.
Catchwords:	ESTOPPEL - proprietary estoppel - arising by representation or acquiescence - oral representations - whether any representations made - whether plaintiff acted to detriment.
Legislation Cited:	Australian Consumer Law 2010 Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 Delaforce v Simpson-Cook [2010] NSWCA 84 Evans v Evans [2011] NSWCA 92 Giumelli v Giumelli (1999) 196 CLR 101 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Ramsden v Dyson (1866) LR 1 HL 129 Sullivan v Sullivan [2006] NSWCA 312 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Harbour Port Consulting Pty Ltd (Plaintiff) NSW Maritime (Defendant)
Representation:	Counsel: M W Sneddon / C E Alexander (Plaintiff) J A C Potts (Defendant) Solicitors: Moray & Agnew (Plaintiff) Clayton Utz (Defendant)
File Number(s):	2011/166255

Judgment

1. The plaintiff (Consulting) claims a proprietary interest in land at Woolooware Bay (which it is convenient to call "lot 7") owned by the defendant (Maritime). The proprietary interest is said to arise by estoppel. Consulting claims that Maritime encouraged it to believe that it would have a leasehold interest in the land; that it acted to its detriment in reliance on that encouragement; and that Maritime was aware that it so acted. The result, Consulting says, is that it is entitled to a lease of lot 7 expiring on 31 December 2016.

1. The sole director of Consulting is Mr Craig Turner. He appears to control its business activities. However, all the issued shares in Consulting are owned by Mr Turner's wife.

1. Consulting started to carry on business on the land in about October 2008. Before then, an equivalent business had been carried on by a company known as Harbour Port Constructions Pty Limited (Constructions). Again, Mr Turner was the sole director of, and appeared to control the business of Constructions; but his wife was the sole shareholder. Constructions went into liquidation pursuant to a creditors' voluntary winding up. It has been deregistered. Consulting seems in effect to have taken over, or appropriated, the business of Constructions without any formal agreement. There is some controversy as to whether Consulting made any payment for the business. The evidence does not satisfy me that it did.

1. The case of encouragement, as "pleaded" in the commercial list statement, relies on representations said to have been made by officers of Maritime to Mr Turner on four occasions:

(1) 12 December 2007;

(2) 8 or 31 January 2008;

(3) 15 September 2009; and

(4) 12 November 2009.

1. This aspect of Consulting's case was somewhat amplified in the evidence and submissions. In addition to the representations that I have identified, Consulting sought to rely on representations made on:

(1) 16 August 2006; and

(2) 10 March 2009.

1. Any representations found to have been made by officers of Maritime to Mr Turner prior to October 2008 must be taken to have been made to him in his capacity as the sole director of Constructions. Consulting contends that representations made to Mr Turner after that month were made to him in his capacity as the sole director of Consulting. That may be so as a matter of fact; but there is a live question as to when officers of Maritime became aware that ownership and conduct of the business had passed from Constructions to Consulting.

The real issues in dispute

1. There was no formal statement of the real issues in dispute: no doubt, a reflection of the haste with which these proceedings were brought on for hearing, and an (unsuccessful) attempt by Consulting to expand the range of its case to include claims under the Australian Consumer Law 2010 or alternatively the Fair Trading Act 1987 (NSW) or the Trade Practices Act 1974 (Cth), and other matters.

1. In essence, the real issues in dispute are:

(1) what, if any, representations were made by officers of Maritime to Mr Turner?

(2) Did Constructions or Consulting act to its detriment on any representations that are found to have been made, and if so how?

(3) To the extent that Constructions or Consulting acted to its detriment, was Maritime aware, or should it have been aware, of this?

(4) What, if anything, is the relevance, to the estoppel case, of such representations as are found to have been made to Constructions and of such detriment as Constructions is found to have suffered by reason of any reliance on those representations?

(5) What restrictions are there on the use of lot 7, arising under the applicable planning instrument?

(6) Are such restrictions on use as are found to exist relevant to the existence of a proprietary interest, or as to conditions that ought be imposed on the grant of relief if, otherwise, Consulting makes good its case that it has a proprietary interest?

1. I note that although Consulting's primary estoppel case was based on the representations that it alleged were made, it argued also for a proprietary estoppel based on the proposition that Maritime stood by, knowing that Constructions and Consulting were acting to their detriment on the assumption that they would have a long-term leasehold interest, and did nothing to disabuse them of that assumption. It will be convenient to deal with that under the rubric of the first issue.

Approach to resolution of questions of fact

1. Resolution of the questions of fact in this case depends, in the first instance, on what, if any, representations were made. In this case, all the representations relied upon were said to have been made orally. There are conflicts between the witnesses called for Consulting and the witnesses called for Maritime. The court is required to be satisfied, on the balance of probabilities, that the representations pleaded, or representations to the effect of those pleaded, were made. In my view, the approach to fact finding should accord with the views expressed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, in particular at 318 - 319.

1. Mr M W Sneddon of counsel, who appeared with Mr C S Alexander of counsel for Consulting, disputed that the principles stated by McLelland CJ in Eq in Watson were applicable. He pointed out that Watson was a case of alleged misleading or deceptive conduct, arising out of spoken words, and submitted that in this case it was not necessary to be satisfied, to the degree of precision identified by McLelland CJ in Eq, as to what had been said. He relied, in particular, on what Handley AJA said in Delaforce v Simpson-Cook [2010] NSWCA 84 at [54].

1. I will start with the approach outlined by McLelland CJ in Eq in Watson. His Honour there described the approach that the court should take to the assessment of evidence relating to disputed allegations of misleading or deceptive conduct said to have been perpetrated by means of oral representations. As his Honour said, the party asserting misleading or deceptive conduct needed to show what the conduct was and why it was misleading. Where the conduct is said to have been found in oral representations, it is necessary, his Honour said, "that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances". The need for precision was important because the question of whether the words were misleading might depend upon "relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition".

1. Further, as his Honour pointed out, human memory is fallible. Common experience suggests that fallibility increases with the passage of time. That is particularly so, his Honour said, "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".

1. In summary, as his Honour 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.

1. His Honour pointed to the need for the court to feel some sense of actual persuasion of the existence of each element of the cause of action. That did not mean that proof is to be achieved other than on the balance of probabilities. It directs attention to the concept of proof, and the concept of satisfaction. (See, too, my judgment, with which McColl and Bell JJA agreed, in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] to [55].)

1. The consequences of those considerations was, McLelland CJ in Eq said, that a party relying on spoken words as the foundation of a cause of action for misleading or deceptive conduct might face serious difficulties, "in the absence of some reliable contemporaneous record or other satisfactory corroboration".

1. I accept that, in the passage that I have summarised, McLelland CJ in Eq was talking of a cause of action founded on s 52 of the Trade Practices Act or s 42 of the Fair Trading Act . However, at 319, his Honour said that the approach to fact finding was equally applicable to a cause of action based on equitable estoppel. In particular, as to equitable estoppel, his Honour added the requirement "that any representation alleged was clear and unequivocal and was relied on to the substantial detriment of the representee".

1. It follows, in my view, that unless some alternative approach to fact finding can be discerned from what Handley AJA said in Delaforce , I should be guided by the approach outlined by McLelland CJ in Eq in Watson . I reiterate that if I am to do so, each element of the cause of action must be proved to the reasonable satisfaction of the court. The court must feel an actual persuasion of the occurrence or the existence of each of those elements. Just as his Honour thought was the case for a cause of action for misleading or deceptive conduct based on spoken words, a party relying on oral representations to found an equitable estoppel may face difficulty in the absence of contemporaneous records or clear corroboration.

1. I turn to the judgment of Handley AJA in Delaforce . Allsop P (with short additional reasons) and Giles JA agreed with Handley AJA.

1. Delaforce was a case of an alleged proprietary estoppel by encouragement, based on a promise by the deceased that he would make a will whereby an identified property would be given unencumbered to the plaintiff, his former wife. As Handley AJA noted at [22], the critical issues were of reliance and detriment: did the plaintiff rely on the assurances that were proved (and if so to what extent); was it reasonable for her so to rely; what detriment did she suffer; and what if any relief should be granted to her? There was no dispute as to the content of the promises relied upon to give rise to the estoppel, because they were contained in writing. The passage in the reasons of Handley AJA on which Mr Sneddon relied must be read against that background.

1. The passage on which Mr Sneddon relied appears at [55]. Handley JA commenced that paragraph by stating:

"A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation...".

1. As Handley AJA had made clear at [54], what was said at [55] and following was based on his Honour's (dissenting) judgment in Sullivan v Sullivan [2006] NSWCA 312 at [11] to [32]. The sentence that I have just quoted appears to be based on Sullivan at [16] where the same words appear, and the same cases are cited in support of the proposition (I have not given those citations). In Sullivan , Handley JA said, after referring to those cases, that this principle was not relevant because the plaintiff's interest was defined by her brother's Christmas card to her.

1. The same could have been said in Delaforce , because the extent of the interest was defined by the written promise: to leave a specified property unencumbered to the plaintiff by will.

1. In my view, what Handley AJA said in Delaforce , (or, for that matter, in Sullivan ) was not directed to the question of satisfaction of the burden of proof. By contrast, that is the very question with which McLelland CJ in Eq was concerned in the passage from Watson that I have summarised above.

1. For those reasons, I conclude that (as I have said), in dealing with the question of what, if any, representations were made, I should assess the evidence by reference to the principles explained by McLelland CJ in Eq in Watson , as I have summarised them above.

The witnesses in the case

1. The principal witness of fact for Consulting was Mr Turner. He swore a detailed principal affidavit, and was cross-examined closely on it.

1. It is a somewhat unusual feature of Mr Turner's evidence that, although he agreed with the description of himself as "a fairly prodigious taker of notes" who made "extensive diary entries" (T13.39 - .44), there was very little in the way of contemporaneous documentation to support his evidence of the various representations that he said were made to him. Specifically, there were no contemporaneous notes recording or summarising the meetings in which those representations were said to have taken place. On the other hand, there were some contemporaneous documents (for example, letters written after one or other of the meetings in question) which did not refer to the representations that, in his affidavit, Mr Turner asserted were made to him, although it might be thought likely that, if the representations had been made, the documents would have referred to them.

1. I do not find that Mr Turner sought intentionally to mislead the court, or knowingly to give untrue evidence. But I do conclude that his recollection, or purported recollection, of events was deeply affected by a perception - perhaps unconscious - of self-interest. I think that Mr Turner has come to believe in the justice of his (or his company's) cause, and that he has, no doubt unconsciously, reconstructed the events of which he gave evidence in such a way as to support that belief.

1. There were passages in Mr Turner's cross-examination where this process was clear. For example, there was an issue in the proceedings as to whether certain actions undertaken by Constructions, which were asserted to have been to its detriment, were undertaken in reliance on any representation that had been made to Mr Turner. Mr Turner dealt with this in his principal affidavit, sworn 24 June 2011, at paras 42 to 62. It is clear from the structure of the affidavit, and from what precedes those paragraphs, that the "early improvements" to which they were said (by the heading preceding para 42) to relate were undertaken without any representation, from Maritime, as to length or security of tenure. Nonetheless, in cross-examination, Mr Turner baulked at this, and sought to suggest that some of the works described in those paragraphs had been done in reliance on representations made by a Mr Simon Lawton of Maritime. In the end, having asserted that this was the case, Mr Turner was forced to retreat, which he did by taking refuge in lack of recollection. See, generally T30.17 - where, appropriately and not at all surprisingly, Mr Turner accepted that his memory of some of the relevant events was "hazy without the benefit of some documentary record" - to T32.36.

1. I have come to the conclusion that I should be careful in accepting the uncorroborated evidence of Mr Turner on factual issues that are in dispute. I base that partly on the matters that I have referred to above (including the surprising failure of a "fairly prodigious note taker" to make and produce contemporaneous records of important conversations), partly on my view as to the subconscious tendency to reconstruct events in a way more favourable to his or his company's case, partly (although acknowledging the limitations of what I am about to say) on considerations of demeanour and partly on what I see as inconsistencies between Mr Turner's evidence as to representations that he said were made to him as to length and security of tenure and his evidence, in cross-examination, as to his understanding on those very matters. I have given reasons to support the first two points, and do not propose to encumber these reasons with further citation of transcript or documents in support of them. The third point needs no explanation, other than to say that from time to time Mr Turner was clearly unwilling to accept the obvious, where he perceived that it might be inconsistent with his case; and was inclined to evade the point of difficult questions. I shall deal with the fourth matter later in these reasons, in dealing with reliance and detriment.

1. Consulting called two other witnesses: Mr Robert Drake and Mr John Hedison. Each of them swore an affidavit. Mr Drake was not required for cross-examination. I accept his evidence, so far as it goes. Mr Hedison was cross-examined. An attempt was made to suggest to him that his memory of what was said might be faulty. Mr Hedison did not accept that it was. His evidence is really relevant to one only of the representations: that said to have been made by Ms Michelle Perez of Maritime, on 12 December 2007. Although Mr Hedison was unshaken in his evidence as to that meeting, I have come to the conclusion that he was mistaken, and that what Ms Perez said should be accepted. I do that based on my assessment of the likelihood that Ms Perez would have used the words attributed to her. I deal with this below, in my analysis of the evidence relating to that meeting.

1. Thus, whilst I accept that Mr Hedison sought to give truthful evidence, and in no way sought to mislead the court, I do not accept as accurate his evidence as to the meeting of 12 December 2007.

1. The principal witness called by Maritime was Mr Lawton. It is clear, and he properly acknowledged, that he had a very imperfect recollection of relevant events, because of the passage of time and the range of duties in which he had been involved over the interval between those events and the time when he swore his affidavit and was cross-examined on it. Nonetheless, I formed the view that Mr Lawton was a witness who sought to give truthful evidence, so far as he could. I am satisfied that he did not seek to tailor his evidence to suit what might have been perceived to be the interests of his employer, Maritime.

1. Mr Lawton had very little, if any, recall of the relevant conversations. He did however assert that he did not say, or would not have said, various of the things attributed to him. He gave reasons. In general, those reasons struck me as being logical; and in some cases at least, they were supported by contemporaneous documents. Thus, whilst I accept that these aspects of Mr Lawton's evidence may be regarded as involving an element of reconstruction, the reasons which he gave suggest that, viewed objectively, it was less rather than more likely that he would have used the words attributed to him which he denied having used.

1. Ms Perez was also called. I formed the view that she too was a witness who sought to give truthful evidence. She was, at the time, of the events concerned, a recent and comparatively junior employee of Maritime. She said, in essence, that because of her status and lack of familiarity with the subject matters discussed at the meetings which she attended, she would not have used the words attributed to her. That seems to me to coincide with common sense: particularly in a situation where (as happened at the meeting of 12 December 2007) Ms Perez accompanied two senior officers, Mr Lawton and a Mr Terry Tyler.

1. Thus, whilst Ms Perez readily accepted that she had no real recall of the relevant conversations, I am satisfied that, for the reasons she gave, it is unlikely that she would have used the words attributed to her. I should note that Ms Perez is no longer employed by Maritime (indeed, she has not been employed by Maritime for the last three years), and it cannot be suggested that she has any interest whatsoever in the outcome of the proceedings, other than the interest that any responsible witness has in giving accurate and truthful evidence to the best of his or her ability.

1. The other witnesses called by Maritime were Ms Claire McDonough, Mr Denis Buttigieg and Mr Allan Young. None of those witnesses was required for cross-examination. I accept their evidence, so far as it goes.

Proprietary estoppel: the principles

1. Before turning to the facts, I shall set out, to the extent necessary, the principles relevant to the enforcement of proprietary estoppels.

1. In Ramsden v Dyson (1866) LR 1 HL 129, Lord Kingsdown said that if one person created or encouraged in another an expectation that the other should have a certain interest in land, and the other acted to his or her detriment upon the faith of that expectation, equity might compel the first person to give effect to the expectation by granting the estate or interest. Although his Lordship was in dissent on the facts of that case, his statement of the basic principle has been accepted and applied many times.

1. I referred earlier in these reasons to the judgment of Handley AJA in Delaforce . Mr Sneddon submitted that what his Honour there said provided an authoritative statement of the relevant principles.

1. Mr J A C Potts of counsel, for Maritime, contended that I could find the relevant principles in the decision of the Court of Appeal in Evans v Evans [2011] NSWCA 92. In that case, Campbell JA (with whom Giles JA and Sackville AJA agreed) accepted that the principles that the trial judge (Brereton J) had stated were correct. In substance, Brereton J said that for a plaintiff to establish a proprietary estoppel, the following things must be established:

(1) that the plaintiff acted or refrained from acting, in reliance on an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant's property;

(2) that the defendant induced the plaintiff to adopt that assumption or expectation, and encouraged the plaintiff's reliant activity, or at least did not deny the assumption or expectation although knowing that the plaintiff was relying on it to its potential detriment; and

(3) that the assumption or expectation was, in respect of the subject matter to which it related, one that the defendant could lawfully satisfy.

1. As Brereton J pointed out, again with the approbation of the Court of Appeal, the relevant conduct of the plaintiff and of the defendant "will be factually interrelated and interwoven".

1. I see no difference of principle between the analysis of Brereton J, which as I have noted received the approval of the Court of Appeal, in Evans , and the analysis of Handley AJA in Delaforce . Handley AJA referred at [63] to what Lord Kingsdown had said, and referred to the observations of Lord Templeman (giving the advice of the Privy Council) in Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 at 121. His Lordship there referred to "the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment on that belief is enabled to obtain that interest".

1. For Consulting to succeed in this case, it must show that:

(1) it was led, by conduct of Maritime, to believe that it would be granted an interest in land;

(2) it acted to its detriment on that belief;

(3) Maritime intended or knew (or perhaps ought to have known) that Consulting would so act; and

(4) it would be inequitable to permit Maritime now to deny the expectation that it engendered.

1. There are occasions on which the relief granted may fall short of the estate that the plaintiff was led to assume would be granted. That would be so, for example, if (as Gleeson CJ, McHugh, Gummow and Callinan JJ pointed out in Giumelli v Giumelli (1999) 196 CLR 101 at 123 - 124) to grant relief giving effect to the expectation would exceed what could be justified by the requirements of good conscience, and would be unjust to the estopped party. As their Honour said, this qualification "might be a requirement that the party relying upon the estoppel do equity".

First issue: what representations were made?

1. I propose to approach this issue on the basis that, notwithstanding the way its case was pleaded, Consulting is entitled to rely on the case that was opened and run; namely, that there were six separate representations made on which it relied to its detriment. It is convenient to deal with each of those representations separately, bearing in mind of course that the first three were made before Consulting began to occupy lot 7 or conduct any business from it.

16 August 2006

1. In summary, Mr Turner's evidence as to the discussions that he said he had with Mr Lawton on that day was to the following effect:

Mr Turner met Mr Lawton and said that he was speaking for himself and also "on behalf of most of the other lot holders".

Mr Lawton said that Maritime had just taken the land over from NSW Fisheries, wanted to make sure that the site was properly managed for maritime and oyster industry purposes, and wanted the place cleaned up. Mr Turner agreed to pass that message on.

Mr Turner said that he and the others were "looking to get a lease" and asked "what sought of tenure are we going to get" Mr Lawton replied that this was "yet to be sorted out, but it will be in keeping what the oyster farmers have".

There was discussion as to obtaining an accurate survey of the boundaries, as to Mr Turner's having the right to use part of "Dick Rowe Marine's site" and as to what was effectively a common area, known as lot 3. Mr Lawton said that he would look into those issues.

1. Mr Lawton agreed, by reason of correspondence to which I will turn in a moment, that there was a meeting on 16 August 2006. He said that it was "possible that the gist of the conversation was as stated by" Mr Turner. However, he denied that he said that any tenure "will be in keeping with what the oyster farmers have". He gave two reasons for being certain that he did not say words to that effect:

(1) oyster licenses were granted by NSW Fisheries, not Maritime; any occupation by an oyster farmer of a part of the overall site was incidental to licences to farm oysters granted by NSW Fisheries. In his mind, there was a differentiation between use of parts of the site for aquaculture purposes and use of the site for other purposes which did not involve aquaculture and which he called "industrial maritime" purposes; and

(2) in about 2004, NSW Fisheries had informed Mr Lawton that there was to be a trial reintroducing oyster cultivation into the Georges River using Pacific oysters. To that end, NSW Fisheries wanted to make sure that there was land available to support those operations if required. Accordingly, NSW Fisheries asked Maritime not to enter into lease agreements exceeding three years. On 13 May 2004, Mr Lawton sent and email to an officer of NSW Fisheries asking for confirmation of that request. He said, and I accept, that in no circumstances he would have agreed, in August 2006, to grant any form of any long term tenure. (It is convenient to note that the lease of lot 4 presently held by Mr Drake's company was in force as at August 2006 (it commenced on 6 July 2001) and was for a term of 15 years expiring on 31 December 2016.)

1. Mr Turner wrote to Mr Lawton, following the meeting, on 18 August 2006. That letter referred to the meeting and "the positive outcomes on behalf of ourselves and Dick Rowe Marine" (ie, the request for the formalisation of Construction's use of part of the land occupied by Dick Rowe Marine). The letter referred to some of the consequences of those "positive outcomes" and then turned to the common area, lot 3. Conspicuously, the letter made no mention whatsoever of any indication (let alone undertaking or promise) from Mr Lawton that any tenure granted to occupants of lots on the site would "be in keeping with what the oyster farmers have". The letter did not even refer to any request for an indication of what tenure might be granted to occupants.

1. I do not accept that, if those matters had been raised and if Mr Lawton had used words to the effect of those attributed to him, the letter would have been entirely silent. On Mr Turner's account of the meeting, there were, from his perspective, two important matters discussed: Construction's use of part of the land occupied by Dick Rowe Marine; and security of tenure. The letter referred in some detail to the first matter, and made not even a passing reference to the second. To my mind, this confirms Mr Lawton's evidence that the question of tenure was not discussed; specifically, his denial that he gave any assurance of security of tenure "in keeping with what the oyster farmers have".

1. I conclude that the representation said to have been made on 16 August 2006 was not made.

12 December 2007

1. Mr Turner said that he met Ms Perez and Mr Tyler of Maritime on 12 December 2007 at the site, with other lot holders present, and that Ms Perez introduced Mr Tyler "as Waterway's surveyor" (referring to the previous name of Maritime). There was some discussion about boundaries, encroachments and rubbish.

1. According to Mr Turner, Mr Tyler and his staff went off to carry out their survey work. He said that he then had a discussion with Ms Perez, in the course of which he asked:

When do you think we will get our lease documents? Are you able to tell me what term we'll be given? And what will the cost be?

1. He said that Ms Perez replied:

The cost and the time frames will be based along the same lines as the current oyster farmers. It will be based on the same rates and for the same term.

1. Mr Hedison dealt with this meeting, although he placed it towards the end of 2007 or around the start of 2008. He said that there were discussions as to tenure, in the course of which Mr Turner referred to the need for certainty, and Mr Hedison joined in. According to Mr Hedison, Ms Perez replied:

You are all going to be secure here. This is a marine precinct and we want to keep it this way.

1. Mr Turner did not give any evidence of a conversation to the effect set out by Mr Hedison in this part of his affidavit.

1. However, Mr Hedison said, after the conversation that I have just referred to, he overheard an exchange between Ms Perez and Mr Turner in which Mr Turner said:

We want to be the same as everyone else including the oyster farmers. We want the same sought of tenure.

1. According to Mr Hedison, Ms Perez replied:

You will be treated the same. Everyone here will get the same treatment.

1. Ms Perez accepted that she attended the site on or about 12 December 2007. She said that she attended with Messrs Lawton and Tyler, and three surveyors. She said that Mr Tyler and Mr Lawton were her superiors, and that Mr Tyler was not a surveyor.

1. Ms Perez could not recall the details of the conversations that took place during this site visit. However, she said, she did not think that she "would have spoken to [Mr Turner] about any matter of substance" on that or any other visit to the site. She gave reasons:

(1) her role in the site visits was to be an observer; she did not speak unless Mr Lawton asked her to do so;

(2) she felt uncomfortable and nervous on these visits;

(3) had she been asked questions of the sort that Mr Turner alleges he put, she would not have answered them herself, but would have referred them to Mr Lawton or Mr Tyler; and

(4) in any event, she did not have the information that would have enabled her to give proper answers to the questions, let alone the answers attributed to her.

1. Ms Perez did not in terms deal with Mr Hedison's affidavit, because it was sworn and filed after she had sworn her affidavit. However, it is clear in particular from her cross-examination that, for the reasons that she gave in relation to Mr Turner's affidavit, she did not accept that she would have used the words attributed to her by Mr Hedison,

1. At the time of the meeting, Ms Perez had not been employed by Maritime for any length of time. I accept her evidence that she did not know of the proposals to give any form of tenure to lot holders, and that she would not have answered the questions said to have been put to her in the way alleged by Mr Turner or Mr Hedison. I accept, further, that if such questions had been put to her, she would have referred them to Mr Lawton or Mr Tyler for an answer. Those aspects of her evidence were substantially unshaken, and in my view they coincide with the probabilities, regarded objectively.

1. I have not overlooked the fact that Mr Hedison provides some corroboration of this aspect of Mr Turner's evidence, and that I accept that Mr Hedison was doing his best to tell the truth. However, I have concluded that he is mistaken.

1. Neither Mr Turner nor Mr Hedison has any record of what was said at the meeting. Nor is there any contemporaneous record which lends any support to the account that each of them gives of what was said at the meeting. There is, however, an important matter of context that seems to me to be inconsistent with the accounts given by them. I turn to that.

1. On about 12 January 2008 (within a month of the conversation alleged by Mr Turner), Maritime provided to Mr Turner "t/a Harbour Port Constructions Pty Ltd" a document described as "offer of licence terms sheet". The licence offered by that document was for a term of 12 months, with a monthly holding over thereafter, and without any option for renewal. There was no protest that this document was inconsistent with the assurances said to have been given by Ms Perez. I have no doubt that, if such assurances had been given, Mr Turner would have protested vigorously that the offer made did not match up to them. I note that Mr Turner was careful to annotate the offer of licence terms sheet where he felt it was defective. In particular:

(1) as to the description of the licensed area, Mr Turner added a handwritten note: "note: - As yet not identified on C21-11/11/02"; and

(2) after words warning that the offer would lapse if it were not signed and returned within 14 days of its due date (Mr Turner did not do so, because he was on holidays when it was received), he wrote: "note: - This was waived as the sq. mt. was being worked out".

1. It is difficult to believe that a person who was so punctilious would have failed to make any note about the offer of a licence for a term of 12 months, rather than for a term consistent with the 15 year term then held by the lessee of lot 4.

The January telephone conversation

1. Mr Turner said that he had a telephone conversation with someone from Maritime on either 8 or 31 January 2008. He relied on notes in his diary:

(1) for 8 January 2008, a note reading "waterways re: - lease - see 12/12/"; and

(2) for 31 January 2008, a note reading "ring waterways lease - 12/12/"

1. Mr Turner "recalls" that in one or other of those telephone conversations he spoke with either Ms Perez or Mr Lawton (he "believes" it may have been Ms Perez but cannot recall precisely) about "the guidelines of the lease". According to him, Ms Perez said that the documents had been prepared and he would receive them shortly. There was discussion of the need for an accurate survey. According to Mr Turner, he then asked what the terms of the lease would be, pointing out that "we've all been spending money... but we can't predict how long we're going to be here". He said that Ms Perez replied:

I know all the works you've been doing. Don't worry, you'll be treated the same as the oyster farmers. You'll be here as long as everyone else, including the oyster farmers.

1. The diary notes to which Mr Turner referred offer no support for this conversation. At most, they show that for each of the days in question, he made a note to remind himself to ring Maritime about the "lease", and crossed the note out when he had done so. This is consistent with his evidence as to his practice, given in cross-examination. However, the diary notes do not provide any record of the terms of the conversation on either of those days, and there is no other contemporaneous record that lends support to this aspect of Mr Turner's evidence.

1. Ms Perez accepted that it is likely that she had conversations with Mr Turner (and, for that matter, other lot holders) in January 2008. She said that it was her responsibility to send out to each lot holder the appropriate offer of licence terms sheet, and to ensure that the signed offers were received back by Maritime. Ms Perez did not accept that she used words to the effect of those attributed to her by Mr Turner. In substance, she said that she would not have done so, for the reasons that I have discussed above (except in so far as those reasons related to the presence of Messrs Tyler and Lawton on the site visit in question).

1. Essentially for the reasons I have given in relation to the meeting of 12 December 2007, I do not accept Mr Turner's evidence and I do accept Ms Perez's denial. I think it is unlikely that Ms Perez would have used the words attributed to her - particularly when terms sheets either had been sent out or were about to be sent out which provided for licences that did not extend up until 31 December 2016. I think it is highly unlikely that Mr Turner would not have protested vigorously when the offer of licence terms sheet that was sent to him did not match up to the assurance that he said he was given in one or other of these conversations.

10 March 2009

1. Mr Turner said that he met Mr Lawton on this day, but cannot recall whether it was onsite or at Maritime's offices at Rozelle. A Mr Heydon Fretton of lot 2 was also present. The meeting was called to discuss a large amount of excavated fill that Mr Fretton's contractors had placed on lot 3. That was discussed. According to Mr Turner, he raised the question of tenure in the course of this meeting, saying that "we're expected to spend serious money on the site but some of us have no idea how long we are going to be here". According to him, Mr Lawton replied:

Your tenures will be okay, but you can't abuse the precinct. You're guaranteed to stay as long as you clean up your shit [referring to the excavated fill]. But you're guaranteed to be kicked off if you keep the site like it is. The rubbish around the precinct at the moment is just completely unacceptable.

1. Mr Lawton accepted that he may have met with Mr Turner on 10 March 2009. He accepted, too, that the gist of the conversation may have been as stated by Mr Turner. However, he did not accept that he used the words "guaranteed to stay", or any other words that referred to security of tenure. He stated that in his mind there was no correlation between uses for aquaculture on the one hand, and uses for industrial maritime purposes on the other, nor was there any reason why the tenures offered to the latter should correspond to the tenures offered to the former.

1. This is not one of the representations that was referred to in the commercial list statement. Nor was it referred to in the first affidavit sworn by Mr Turner, in support of Consulting's application for interlocutory relief. (That affidavit was not read on the final hearing, but what were suggested to be discrepancies between the account given in that affidavit and the account given in the affidavit that was read were put to Mr Turner in cross-examination.)

1. There is no corroboration of Mr Turner's evidence on this point. He made no note of the alleged conversation, nor is there any other contemporaneous document that supports his account of it. Particularly where, it appears, the meeting was not present to his mind when he gave instructions for the drafting of the commercial list statement or his affidavit in support of the application for interlocutory relief, I am not prepared to find that there was a discussion of the kind alleged.

15 September 2009

1. Mr Turner said that he had a meeting with Mr Lawton on 15 September 2009 at Maritime's offices in Rozelle. The meeting was called to discuss a proposal for Mr Turner, or other lot holders, to use lot 3 on the site. Lot 3 is in effect a "common area", in the sense that it is not the subject of occupation by any individual lot holder. Lot 3 is situated on a channel which gives access to the Georges River and Port Hacking and beyond. It is used by lot-holders for the purpose of loading and unloading watercraft employed for the purposes of their various businesses.

1. According to Mr Turner, he raised the question of whether he, or other lot holders, could "take over lot 3", to which, Mr Turner said, Mr Lawton replied:

No. No one's getting lot 3 for the moment at least. Maritime is in the process of getting the area re-gazetted for marine precinct work zoning. After that you will need a DA to operate on the site. This may or may not mean a formal application but I think not. Its going through Sutherland Council.

1. There was then, Mr Turner said, discussion of the timing of the "gazettal" and further discussion of lot 3. After that, according to Mr Turner, there was a conversation to the following effect:

I said: what security are we going to get? I've been asking about security of tenure the whole time I've been on that site.

He said: the zoning will give everybody security in the long term. You will be there as long as everyone else is at the precinct.

I said: the license document I signed said something about us needing to get a DA. But that requirement's never been enforced.

1. Mr Lawton accepted that he met Mr Turner on 15 September 2009. He did not recall the specific conversation, but accepted that "it is possible that the gist of the conversation was as stated" by Mr Turner. However, he denied that he said anything about "the long term" or that "you will be there as long as everyone else is at the precinct", or words that gave any assurance of long term occupancy.

1. Mr Lawton repeated his view that, in his mind, there was a clear distinction between use for aquacultural purpose and use for maritime industrial purposes. Further, he said, as at 15 September 2009, he and others from Maritime were dealing with Sutherland Council in relation to the rezoning of the entire site. Mr Lawton accepted that he may have discussed this process with Mr Turner. Mr Lawton accepted, further, that it was his view that a rezoning would secure the long term future of the site for Maritime industrial use, and that he may have said as much to Mr Turner.

1. I do not accept Mr Turner's evidence. Again, it is unsupported by any contemporaneous note and there is no corroboration. I think that the likelihood that Mr Lawton, as he said, expressed the view that zoning would ensure the long term use of the site for maritime industrial purposes, and did not refer to or give any assurance as to long term tenure for individual lot holders.

12 November 2009

1. According to Mr Turner, he met Mr Lawton, again at Maritime's offices in Rozelle, on 12 November 2009. The meeting was called to discuss the calculation of rent. However, Mr Turner said, he raised the question of tenure once more. According to Mr Turner, there was a conversation to the following effect on that topic:

I said: we should be treated the same as everyone else on site. Not only the rent, but the term of tenure too.

He said: I have no issue with the business activities of all license holders. It is a marine precinct. You'll all get the same treatment.

1. Mr Lawton accepted that he may have met Mr Turner on 12 November 2009. He did not recall the specific conversation, but again accepted that "it is possible that the gist of the conversation was as stated by" Mr Turner. However, Mr Lawton said, if he said "you'll all get the same treatment", that was in relation to the lot holders who used their lots for maritime industrial purposes.

1. Again, there is no contemporaneous record that provides any support for Mr Turner's account of the conversation. There is, however, a contemporaneous record that provides support for Mr Lawton's account. On 12 November 2007, and presumably after the meeting, Mr Lawton sent an email to Mr Turner referring to the meeting. It said, among other things:

As discussed, NSW Maritime has applied a consistent and transparent rental rate to all maritime industrial users of the site, with the exception of Drake Oysters and John Hedison who are covered under other state government legislation associated with aquacultural uses.

1. Mr Turner did not reply to that email. He did however include a printout of it in the exhibit to his affidavit. On that printout, Mr Turner had put a circle through the paragraph that I have set out and, below the circle, put a question mark with an arrow leading up to the circle.

1. Mr Turner gave the following evidence concerning the email and his notations on it (T62.6-.37):

HIS HONOUR

Q. The email has a hand drawn circle with and arrow pointing up to from below the text and question mark beside the arrow. Do you see that?

A. I do.

Q. Did you put those marks on the print out of it?

A. I did.

Q. Were you highlighting paragraph commencing, "As discussed" by those notes?

A. I was.

Q. Why did you make those marks on the print out?

A. It contradicted the context of the discussion I had with Mr Lawton earlier in the day.

Q. Did you do anything about that?

A. No.

POTTS

Q. You didn't write back and say, "No, you misunderstood what we discussed", did you?

A. No.

Q. You did not write [b]ack and say, "Thank you for meeting with me. I am comforted you have give[n] me security of tenure" did you?

A. No.

Q. And that is because it did not happen?

A. That is not correct.

1. Mr Turner did not strike me as someone who was afraid to speak his mind, for fear of offending the person to whom he was speaking. On the contrary, if Mr Turner's account of his various conversations is to be accepted, he was forthright in asserting, and in seeking clarification of, what he understood to be his rights. It is unlikely that Mr Turner would have refrained from replying to Mr Lawton's email, had he thought when he received it that it involved some misunderstanding or misstatement of the effect of his discussions with Mr Lawton earlier that day.

1. In my view, the email is consistent with Mr Lawton's evidence on this point, and Mr Turner's failure to reply to it is inconsistent with his account of the conversation.

1. I do not accept that there was a conversation on 12 November 2009, dealing with security of tenure, as asserted by Mr Turner in his affidavit.

Conclusion on estoppel case based on representations

1. Consulting has failed to make good its case of estoppel by encouragement, insofar as that case is based on representations at the meetings pleaded and particularised, and for that matter, at the other meetings referred to in the evidence.

Estoppel case based on standing by with knowledge of activities

1. Consulting also alleges that, with Maritime's knowledge, it carried on its business on and from lot 7 over a number of years, and spent money on "improving" lot 7 and for other purposes associated with its business. Consulting alleges that Maritime, by failing to intervene, acquiesced in Consulting's so acting, knowing (or in circumstances where it ought to have known) that Consulting was so acting because it believed that it had, or would get, security of tenure by way of a long term lease.

1. One difficulty with this aspect of Consulting's case is that the argument that Maritime knew or ought to have known that Consulting believed it had, or would get, a long term lease is based on the various representations that I have dealt with already. Since I have concluded that none of those representations was made, the factual basis for the asserted knowledge (actual or imputed) falls away.

1. In any event, this aspect of Consulting's case is not made good. It was Constructions that occupied lot 7, and carried on business on and from it, up until October 2008. Mr Turner said that when Constructions was placed into liquidation and Consulting took over the business, all creditors (including Maritime) were notified. The evidence as to notification is less than cogent. What is clear from Maritime's records is that it regarded Constructions as the occupant, or lessee, for some time after October 2008. It was not until 21 June 2010 that Maritime's records were updated to note that it was Consulting and not Construction that was the occupant of lot 7. Up until then, invoices for "rent" and statements of account were issued by Maritime to Constructions. There is no evidence that, after the notification alleged to have been given by circular letter in late October 2008, Consulting ever took issue with Maritime about the way in which invoices and statements of account were addressed, not to it but to Constructions.

1. Mr Sneddon did rely on the fact that, from time to time after October 2008, Mr Turner wrote to Maritime on the letterhead of Consulting. One such letter, dated 27 March 2009, is in evidence. The letterhead is of "Harbour Port Consulting (Marine Construction)". Mr Turner signed it over the words "Harbour Port Consulting". The email reply to that letter, from Ms McDonough of Maritime, stated as the subject "Harbour Port Construction - Woolooware Bay F#W00/54/8".

1. Mr Turner replied to that email, on the letterhead of "Harbour Port Consulting Pty Ltd (Marine Construction)". He signed his name over the words "Harbour Port Consulting Pty Ltd".

1. The subject of the correspondence was the amount payable by way of occupation fee or rent for the use of lot 7. Ms McDonough had sought a copy of the relevant agreement. Mr Turner sent to her the offer of licence term sheets which, as I have said, referred to the licensee as him "T/a Harbour Port Constructions Pty Ltd". Mr Turner's letter sending the offer of licence terms sheets to Ms McDonough did not make any reference (apart from what might be gleaned from the wording of the letterhead and the way in which Mr Turner signed it) as to the change in identity of the entity in occupation and use of lot 7.

1. I accept that it was not until June 2010 that Maritime actually became aware that Consulting, rather than Constructions, was occupying and using lot 7. Perhaps, the letters to which I have referred (and others in the evidence) should have put it on inquiry at some earlier time. The reality, I think, is that in a practical sense Maritime dealt with Mr Turner, and did not concern itself overly as to the entity or entities through which he conducted his business on lot 7.

1. Be all that as it may, the evidence as to work carried out or expenses incurred by Constructions is sparse; and that relating to expenses incurred by Consulting is sparser still.

1. In 2004, Constructions bought a shipping container which it used as a shed and storage facility on site. Later in 2004, Constructions erected a shelter over part of lot 7, using tarpaulins attached to that shipping container. In early 2005, Constructions bought another shipping container and placed it on the site.

1. In June 2006, Constructions arranged for a concrete slab to be laid over the front portion of lot 7. Mr Turner said that he spoke to someone from Maritime later in 2006, about "putting a proper roof up here". The unidentified officer of Maritime is said to have authorised that and to have requested that a fence be put up on the boundaries. Those works were carried out.

1. Again in 2006, according to Mr Turner, Constructions bought yet another shipping container to place on lot 7. The evidence is unclear as to whether there were in fact two or three containers bought, but nothing really turns on this. A little later in 2006, Constructions arranged for "a factory shed" to be built on lot 7. Elements of that shed were welded to one of the shipping containers that had been placed on the site. At the same time, there were constructed an office and storage area, work benches and the like.

1. Mr Turner said, and I accept, that those improvements were "readily visible to any visitor on the site," and that no one from Maritime complained about them.

1. Mr Turner said that on or after January 2008, and in reliance on assurances as to security of tenure, Constructions undertook the purchase of a bobcat excavator, and, in conjunction with another lot holder, the purchase of a yard crane and a crawler crane. The assurances on which Mr Turner claimed to have relied were identified, in his evidence in chief, as those said to have been given by Ms Perez (or perhaps Mr Lawton) in the telephone conversation of 8 or 31 January 2008. For the reasons that I have already given in relation to that alleged conversation, I find that no assurance as alleged was given.

1. As I find below in dealing with Consulting's activities based on reliance, all those activities were undertaken before, on Mr Turner's evidence, there was any discussion with representatives of Maritime about security of tenure. I should say that I regard Mr Turner's attempts to suggest otherwise in cross-examination as, at best, disingenuous. For present purposes, however, the significant fact is that those activities were undertaken by, and presumably at the expense of, Constructions.

1. Mr Turner sought to suggest that Consulting had paid for the benefit of those works by making some payment for the business when it took it over from Constructions in October 2008. I do not accept that evidence. The liquidator's summary of the assets and liabilities of Constructions as at 13 November 2008 showed that the only asset was "cash on hand" of $5,500.00. It attributed no value to the business. When the liquidator prepared his final accounts in June 2009, he detailed the only receipts as being two payments received from Mr Turner. One payment, in the sum of $5,500.00, was made on 24 November 2008. The other, of $6,600.00, was made on 27 February 2009. Each was described as:

Monies Received Pursuant to Indemnity

1. Some attempt was made to suggest that those payments represented payments for the value of the business. I do not accept that. On the face of the liquidator's records, the payments were made by Mr Turner, not by Consulting. Further, the description of them as payments made pursuant to an indemnity is, if not inconsistent, at least not consistent, with their having been payments for the business taken over.

1. Accordingly, in my view, any evidence of detrimental reliance on the part of Constructions - and for the reasons I have given none of the payments to which I have referred can amount to detrimental reliance, because they were not made on the fate of any representation as to security of tenure - is irrelevant to Consulting's position and rights.

1. The only evidence of any expense incurred by Consulting after October 2008 relates to the acquisition of a "dumb barge" in mid 2009. Mr Turner said that he agreed with a Mr Peter Geddes of Hunter Wharf and Barge (HWB) to purchase that dumb barge for use in joint venture work involving both companies, and otherwise to be used by them individually as needed.

1. The cost of the barge - a little in excess of $60,000.00 - was invoiced to HWB. There was no evidence that any contribution towards that cost had been made by Consulting. (Mr Turner had dealt with this topic, in a brief, and entirely conclusory and unsatisfactory way, in a paragraph of his affidavit to which objection was taken and which was rejected.)

1. Mr Sneddon submitted that I could infer payment from the fact that Mr Turner had said, without objection, that the barge was "jointly purchased". I do not see why the court should draw inferences in favour of a party who could have proved the point from its own records, but failed to do so. But even if that inference were to be drawn, there is no evidence that anyone from Maritime was aware of the existence of the barge, or that it was in whole or in part an asset of Constructions. There is no evidence as to where the barge was regularly moored, or as to where (if not moored) it was stored on land. (The barge was designed to be transportable by land, and it may perhaps be inferred from that that it could have been stored either at the premises of HWB or somewhere on or adjacent to lot 7; but there was no evidence supporting this latter possibility.)

1. Thus, even if that "purchase" had been made in reliance on any assurance as to tenure - and for the reasons that I give below, I do not find that it was - there is no evidence that anyone from Maritime knew that the barge had been purchased, or that Consulting had some interest in it.

Second issue: detrimental reliance

1. For the reasons I have given, I find that the representations alleged by Consulting were not made. Accordingly, its case of detrimental reliance fails. But in any event, there is no evidence of reliance. To some extent, I have dealt with this, in relation to the alternative formulation of the estoppel case, at [98] to [111] above.

1. Mr Turner was cross-examined on, among other things, the question of reliance in relation to each of the acts that were alleged to have been done in reliance on the representations that he said were made. In summary, he accepted that at the time each of those acts of reliance was undertaken or performed, he had no understanding or assurance of security of tenure.

1. I do not propose to go in detail to each of the passages in Mr Turner's cross-examination dealing with the question of reliance. In relation to the various activities undertaken and expenses said to have been incurred up until about mid 2006, Mr Turner gave the following evidence:

(1) (T31.16-.20): he had not at that time had any assurance from anyone at Maritime about his company's tenure;

(2) (T32.26-.36): he could not recall that any of those works were carried out after the first conversation as to tenure that he alleges, which was said to have taken place on 16 August 2006;

(3) (T35.21-.35): all those works, prior to the alleged meeting in August 2006, were undertaken with "no certainty of tenure" and "without any security of tenure".

1. There were many other passages in the cross-examination of Mr Turner in which he accepted, at the time he had various conversations, he knew that he had no security of tenure; indeed, the whole point of those conversations was to obtain some assurance as to security of tenure.

1. Finally, on this topic, I note that there was a meeting at Maritime's premises on 12 January 2011. Mr Turner attended that meeting with his legal adviser, Mr Michael Chapman. The representatives of Maritime included an in-house lawyer, Mr Frank Krstic. The minutes of that meeting, which I accept as accurate, attribute to either Mr Chapman or Mr Turner the comment:

Understand the agreement with NSWM is on monthly hold over (NOTE: only tenancy at will as there has been no Licence Agreement prepared only a Terms Sheet) and occupant has no rights, NSWM can give notice at anytime.

1. According to the minutes, Mr Krstic replied:

Regardless of what illegal reclamations neighbouring occupants have or have not created, NSWM will be dealing with each on a case by case basis. The fact of the matter is there [sic] no formal tenure and this is the business risk Harbour Port Consulting has taken. It is not a defence pointing out illegal occupation of the neighbouring occupants."

1. Mr Turner is said to have replied:

[S]tated he has tried to get a long term tenure and had a discussion with SL, who advised there is no development consent and NSWM cannot issue any agreements. Once the planning issues are sorted NSWM would then secure tenure.

1. In my view, those comments are entirely inconsistent with any belief, on the part of Mr Turner, that he or his company had some definite assurance of long term tenure. On the contrary, as he himself said, that had been the very thing that he was trying to secure in his many discussions with Mr Lawton and others of Maritime.

1. As I have said, even if I were persuaded that some representations as to tenure had been made, I would not conclude that Consulting had relied, let alone to its detriment, on them.

Third issue: Maritime's awareness of detriment

1. I accept that when officers of Maritime visited the site, they either saw or could have seen such "improvements" as Constructions had erected there, and as were subsequently used (through Mr Turner) by Consulting. Since I have found that the representations in question were not made, there is no basis for concluding that those officers of Maritime knew, or should have realised, that such expenditure as had been incurred in respect of the "improvements", was incurred in reliance on representations made by Maritime.

1. There is no evidence that officers of Maritime ever became aware of the dumb barge, the bobcat excavator, the yard crane or the crawler crane. Again, even if they had became aware that those items of equipment had been acquired by Constructions or Consulting (either on its own account or in conjunction with another entity), there is no basis for them to have concluded that the acquisitions were made in reliance on representations, because there were no representations made.

Fourth issue: relevance of representations allegedly made to Constructions

1. My finding that there were no such representations disposes of this issue at the level of fact.

Fifth and sixth issues: permitted activities

1. I am unsure of the relevance of these issues. They were not addressed in final submissions. Since the conclusions to which I have come are sufficient to dictate that Consulting's case fails, I do not propose to deal with these issues.

Conclusion and orders

1. Consulting's claim that it is entitled to a proprietary interest by estoppel fails. The interlocutory injunction should be dissolved, and the proceedings dismissed with costs.

1. I make the following orders:

(1) dissolve order 1 made on 24 May 2011;

(2) order that that the summons be dismissed;

(3) order the plaintiff to pay the defendant's costs.

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Decision last updated: 09 August 2011