Hawkesdale Asset Pty Ltd v Bennett
[2023] VSC 409
•18 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2023 01509
| HAWKESDALE ASSET PTY LTD (ACN 643 793 711) (as Trustee for the Hawkesdale Asset Trust (ABN 59 553 743 263)) | First Plaintiff |
| - and - | |
| RYAN CORNER DEVELOPMENT PTY LTD (ACN 130 542 915) | Second Plaintiff |
| v | |
| WILLIAM DAVID BENNETT | Defendant |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4, 5 & 6 July 2023 |
DATE OF JUDGMENT: | 18 July 2023 |
CASE MAY BE CITED AS: | Hawkesdale Asset Pty Ltd & Anor v Bennett |
MEDIUM NEUTRAL CITATION: | [2023] VSC 409 |
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CONTRACT — Request to assign Licence Agreement — Whether consent unreasonably withheld — International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 (CA) — Cathedral Place Pty Ltd v Hyatt of Australia Ltd [2003] VSC 385 — Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd [2019] VSC 428 — Secured Income Real Estate (Australia) Ltd v St Martin’s Investments Pty Ltd (1979) 144 CLR 596 — Colvin v Bowen (1958) 75 WN (NSW) 262 — Declaratory relief — Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234 — Specific performance — Supreme Court Act 1986 s 22(1) — Injunctive relief — Pride of Derby v British Celanese Ltd [1953] Ch 149.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Anastassiou KC with Mr N J Baum and Mr C Tsang | Baker McKenzie |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
On or about 29 August 2005, the Defendant, Mr Bennett, entered into a Licence Agreement in respect of his property at Hawkesdale, permitting the construction of wind turbines as part of a wind energy facility. Ryan Corner Development Pty Ltd (“RCD”) is the current Licensee. As part of an internal restructure, RCD seeks to assign its rights under the Licence Agreement to a related company, Hawkesdale Asset Pty Ltd (“Hawkesdale Asset”). Consent to that assignment has been withheld by Mr Bennett and, further, is found in these proceedings to have been expressly or impliedly refused. Under the Licence Agreement, Mr Bennett may only withhold his consent to such an assignment if it is not unreasonable to do so. The critical issue in this proceeding is whether Mr Bennett has withheld consent unreasonably.
The plaintiffs have made persistent efforts over a period of several years to communicate with Mr Bennett about the wind energy facility and to address his concerns in relation to that facility. Mr Bennett has failed or refused to engage meaningfully with the plaintiffs despite the many attempts made by them to communicate with him. Attempts have included offers to enter into a new agreement, by way of lease, on materially more favourable terms to Mr Bennett than those provided under the Licence Agreement. The plaintiffs have been compelled to bring this proceeding as a result of Mr Bennett’s intractable refusal to engage with them in relation to the wind energy facility and in circumstances where the facility is presently under construction. Critically, the construction of the wind energy facility will imminently be impeded if access to Mr Bennett’s land is prevented, resulting in substantial damage to the plaintiffs.
Mr Bennett’s refusal to communicate with or engage with the plaintiffs in relation to the wind energy facility necessitated an application to the Court for orders by way of substituted service arrangements with respect to the Writ and Statement of Claim filed on 14 April 2023. Substituted service orders were made, accordingly, by Efthim AsJ on 1 May 2023. Mr Bennett did not respond to service on the writ, either by filing any responsive document or pleadings and, further, took no part in the trial of the matter. The Court provided live streaming of the trial and also provided Mr Bennett with a remote access link (by Zoom) to enable his participation in some manner as he chose. The Zoom remote access facility was not engaged by Mr Bennett.
Parties and the Project
The Hawkesdale wind energy facility (“the Project”) is located in south-western Victoria near the township of Hawkesdale, north of Koroit which lies between Warrnambool and Port Fairy. The Ryan Corner wind energy facility lies to the south‑west of the Project and is positioned, as is the Project, to feed electricity generated into the power grid through the existing main electricity transmission line between Geelong and Portland.
Hawkesdale Asset is a special purpose vehicle responsible for the construction and development of the Project. Since December 2012, RCD has been the licensee under the Licence Agreement. From January 2013 to late 2020, RCD was responsible for the development of the Project. Hawkesdale Asset and RCD are related companies whose ultimate holding company is Naturgy Energy Group S.A., a Spanish energy company.[1]
[1]
Mr Bennett is the registered proprietor of approximately 229 hectares of land contained in Certificates of Title Volume 10737 Folios 654 and 655 (“Lot 1” and “Lot 2”), and Volume 5865 Folio 958 (“Crown Allotment 3”) inclusive (and together, the “Land”).[2] Mr Bennett has been the registered proprietor of Lot 1 and Lot 2 since about 23 June 1994, and of Crown Allotment 3 since about 15 March 2004, although he entered into a contract of sale to purchase the property on about 21 September 1990.[3] Mr Bennett was sole proprietor of all the Land at the time of entering into the Licence Agreement, and at the time that this proceeding was commenced.
[2]CB1198; CB1200; CB1203.
[3]Sixth Affidavit of Peter Michael Lucarelli sworn 6 July 2023 (“Sixth Lucarelli Affidavit”), [20(a)].
The Licence Agreement
On about 29 August 2005, Mr Bennett and Technology Management Engineering Services Pty Ltd (“TMES”) entered into a licence agreement under which Mr Bennett, as Licensor, granted TMES, as Licensee, rights to construct and maintain Windmill Structures on the Land for the purpose of generating electricity (“Licence Agreement”). The term of the Licence Agreement is 30 years unless terminated earlier, with an option to extend the term by a further 30 years.[4]
[4]Licence Agreement, cll 13.1, 13.2, 32.1 (“Commencement Date”, “Completion Date”).
Following a series of assignment and novation agreements,[5] the rights granted to the licensee under the Licence Agreement were ultimately transferred to RCD, from 31 December 2012.
[5]Deed of Assignment of Licence dated 4 July 2008, cll 2, 3; Novation of Licence Agreement dated 21 December 2012, cl 2.1.
Critically, in the present context, clause 23.1 of the Licence Agreement provides that RCD, as licensee:
may not assign or transfer this Agreement or any right or obligation under this Agreement without the prior written consent of the Licensor which consent may not be unreasonably withheld. [emphasis added]
Clause 30 of the Licence Agreement also requires that “each party must do or cause to be done all such things necessary or desirable to give full effect to the agreement”.
Under the Licence Agreement, Mr Bennett has granted the licensee rights, among others, to enter upon the Land at any time to conduct Tests,[6] to construct Windmill Structures on the Property,[7] to install access roads and other equipment reasonably necessary to operate the Windmill Structures, and to generate electricity and convey electricity to the Power Grid.[8]
[6]Licence Agreement, cl 7.1.
[7]Licence Agreement, cl 8(a).
[8]Licence Agreement, cl 8(c).
The Licence Agreement provides for several procedural steps to be completed before construction can commence on the Land including relevantly:
(a) the Licensee must provide Test and Approval Notices,[9] and a written notice detailing the minimum and maximum number of Windmill Structures to be constructed on the Land (“Windmill Notice”);[10] and
(b) the Licensee must provide the Licensor with a plan detailing the position of all Windmill Structures and any Electrical Sub-Station, or Sub-Stations, to be constructed, and the position of any cabling to be installed on, under or over the Land (“Plan”).[11]
[9]Licence Agreement, cll 7.9, 9.6.
[10]Licence Agreement, cl 10.1.
[11]Licence Agreement, cl 10.3.
RCD and its predecessors under the Licence Agreement have fulfilled all of the contractual steps required including: issuing a Test Notice on or about 26 March 2007,[12] Approval Notice on or about 15 December 2011,[13] Windmill Notice on 5 March 2012,[14] and providing Mr Bennett with a Plan on or about 22 December 2022.[15] All relevant planning approvals have also been obtained to construct the Project on the Land.[16]
[12]Alonso Castro Statement [34](a); Licence Agreement, cl 7.9(a).
[13]Alonso Castro Statement [34](b); Licence Agreement, cl 9.6.
[14]Alonso Castro Statement [34](c); Licence Agreement, cl 10.1.
[15]Alonso Castro Statement [34](d); Licence Agreement, cl 10.3.
[16]Alonso Castro Statement [23].
Under the Licence Agreement, Mr Bennett is entitled to be paid annual Licence Fees from the Licensee.[17] From about October 2013 to about August 2020, RCD and the former licensees paid Mr Bennett Licence Fees totalling $204,330.24 (including GST).[18] Since about May 2021, Mr Bennett has refused to accept further Licence Fees from RCD (and its related entities).[19]
[17]Licence Agreement, cll 11.1 to 11.4.
[18]Alonso Castro Statement [37].
[19]Alonso Castro Statement [37].
Previous assignments
Mr Bennett’s consent to assignment has been requested on two previous occasions:
(a) on 10 April 2008, TMES wrote to Mr Bennett, informing him that a new partner, Union Fenosa, had invested in the joint venture, and that it was proposed that the Project would be assigned to a special purpose vehicle, Hawkesdale Development Pty Ltd, ultimately owned by the new joint venture partners. TMES requested Mr Bennett’s consent.[20] Mr Bennett provided his written consent on 8 May 2008,[21] and on 4 July 2008, signed a deed of assignment of licence to effect that assignment;[22] and
(b) on 20 June 2012, Hawkesdale Development Pty Ltd wrote to Mr Bennett, informing him that a decision had been made to merge the Ryan Corner and Hawkesdale wind farm facilities, and that to effect that, the Project would be transferred to Ryan Corner Development Pty Ltd. Hawkesdale Development requested Mr Bennett’s consent.[23] On 24 December 2012, Mr Bennett provided his consent in the form of a Novation of Licence Agreement.[24]
[20]CB172A.
[21]CB191.
[22]CB173.
[23]CB199.
[24]CB203.
Mr Bennett did not raise any objections to either of these previous assignments.
Compliance with preliminary steps under the Licence Agreement
TMES and then Hawkesdale Development, each as Licensee, satisfied the formal notice requirements under the Licence Agreement necessary for construction of the Project:
(a) TMES issued a Test Notice on or about 26 March 2007;[25]
[25]Alonso Castro Statement [34](a) (CB72); (CB172); Licence Agreement, (CB149) cl 7.9(a).
(b) after obtaining planning permission, written consent to amendments to that planning permission, and the endorsement of development plans,[26] Hawkesdale Development issued an Approval Notice on or about 15 December 2011;[27] and
[26]CB650.
[27]Alonso Castro Statement [34](b) (CB72); (CB193); Licence Agreement, (CB151) cl 9.6.
(c) within 90 days of the Approval Notice, Hawkesdale Development issued a Windmill Notice on 5 March 2012.[28] The Windmill Notice relevantly informed Mr Bennett that:[29]
There will be 4 turbines constructed on your property, which will have a generating capacity of 8 megawatts.
[28]Alonso Castro Statement [34](c)(CB72); (CB194); Licence Agreement, (CB151) cl 10.1.
[29]CB194.
Documents from about the time of the Windmill Notice show that Mr Bennett was given the locations of the four turbines proposed to be built on his property, marked A2, A6, A7 and A8.[30] Mr Bennett took particular issue with the placement of turbine A6,[31] which was the turbine closest to the house on the Land, although Mr Bennett did not live at the property.[32]
[30]CB196.
[31]CB195.
[32]T183–184.
Transfer of the Project to Hawkesdale Asset
In late 2020, a business decision was made to separate the assets and liabilities in relation to two separate wind farm projects, being the Project and a different facility, the Ryan Corner wind energy facility, which at the time were all held by RCD.[33] Hawkesdale Asset was incorporated as a special purpose vehicle for the purpose of completing the Project.
[33]CB71.
In respect of the internal restructure, on 24 November 2020, Hawkesdale Asset and RCD entered into an agreement (“Asset Transfer Agreement”).[34] Critically, the assignment of the Licence Agreement is subject to a condition subsequent that a deed of assignment be procured,[35] which was never satisfied. The Asset Transfer Agreement was completed, according to its terms, on 7 October 2021.[36]
[34]CB71; CB395.
[35]Asset Transfer Agreement, cl 2.2 (CB400).
[36]T189.
Engagement with Mr Bennett from November 2020 to August 2021
On becoming the entity responsible for the Project in November 2020, Hawkesdale Asset attempted to engage with Mr Bennett in relation to four main issues:
(a) first, it sought to consult with Mr Bennett in relation to the proposed layout of the turbines and access roads to be built on the Land,[37] and to satisfy Mr Bennett’s requests for information,[38] which it was unable to satisfy;
[37]Alonso Castro Statement [65], (CB82).
[38]Alonso Castro Statement [65](b), (CB82).
(b) secondly, it sought Mr Bennett’s consent to undertake preliminary geotechnical works on his land in readiness for the Project;[39] which he refused to provide;
(c) thirdly, it sought to negotiate an Option and Licence Deed (“Proposed Deed”) and Lease with Mr Bennett to replace the existing Licence Agreement, which included an option to convert the Proposed Deed to a Lease over the Land, which he refused to agree to; and
(d) fourthly, it sought Mr Bennett’s consent to an application to extend the planning permit for the Project (“Extension Application”), to safeguard against the possibility that the Project would not be completed before the expiry of the then existing planning permit, and the possibility that an earlier decision of the Minister for Planning to extend the planning permit may be quashed in an existing legal proceeding brought by a community group which was opposed to the Project. The Extension Application was ultimately lodged without Mr Bennett’s consent.[40]
[39]Alonso Castro Statement [64], (CB82); Cullen Statement [21], CB125.
[40]Alonso Castro Statement [86], (CB90).
Those issues were initially raised in meetings and telephone calls with Mr Bennett, and in correspondence with the plaintiffs’ solicitors, Baker McKenzie, including on the following occasions:
(a) on 25 November 2020, a meeting held with Mr Bennett on his land;[41]
[41]Cullen Statement [15], (CB123); (CB424).
(b) on 25 November 2020, a detailed letter sent to Mr Bennett;[42]
[42]CB412.
(c) in December 2020, an exchange of emails in relation to relocating the turbines on the Land;[43]
[43]CB429, CB432, CB434, CB436, CB437.
(d) in December 2020 and January 2021, a number of telephone calls and attempted telephone calls, followed by an email from Mr Alonso and an email from Baker McKenzie, in relation to access to the Land for preliminary geotechnical works;[44]
(e) on 8 April 2021, a meeting held with Mr Bennett at a community information session held in Hawkesdale;[45] and
(f) on 28 April 2021, a meeting held with Mr Bennett in his office at Allansford.[46]
[44]CB439, CB444.
[45]Cullen Statement [24], CB125, CB479.
[46]Cullen Statement [25], CB125, CB481A.
At the outset, there was some urgency in the plaintiffs’ requests of Mr Bennett, as it was then intended that they would proceed with the construction phase shortly. However, on 17 February 2021, proceedings were filed in this Court, seeking judicial review of a decision by the Minister for Planning to extend the plaintiffs’ planning permit, and on 5 March 2021, the plaintiffs gave an undertaking to this Court not to proceed with construction (with limited exceptions) without giving 14 days’ notice.[47] That undertaking (and undertakings of a similar nature) remained in place until the proceeding was finally disposed of by the Court of Appeal on 18 August 2022.[48] During that period, with the Project unable to proceed, the plaintiffs nonetheless continued to engage with the defendant.
[47]CB454.
[48]CB982.
From about May 2021, Mr Bennett ceased to engage with the plaintiffs directly, save for a telephone call on 16 August 2021.[49] Instead, he engaged a solicitor, Mr Chakir of Maddens Lawyers in Warrnambool, who was also acting for other landowners involved in the Project.
[49]Cullen Statement [30], CB130, CB607.
Issues raised by Mr Bennett
Mr Bennett raised various issues in relation to the Project throughout the engagements between the parties. During this time the plaintiffs sought to meet issues raised by giving further information to Mr Bennett, by altering the Project, or by offering to compensate Mr Bennett. The following are issues or complaints raised by Mr Bennett in respect of the Project and the plaintiffs’ responses.
Issue / Complaint
Plaintiffs’ response
1
Removal of turbine A6
Agreed
2
Realignment of roads to run alongside fencelines
Agreed
3
Realignment of turbines A2, A7 and A8
Agreed
4
Realignment of roads on other side of tree plantation to straighten
Agreed
5
Removal of turbines A2 and A8 as they are located too close to the house on the Land.[50]
Not agreed. The location of turbines can only be relocated within 100m in accordance with the Planning Permit.[51]
6
Request for a 2km setback from house on the Land.[52]
Not possible to create 2km setback as Planning Permit only allows for changes within 100m of the layout drawings.[53] Locations are agreed in accordance with the original and current Planning Permit.
7
The hayshed will need to be moved because of the positioning of turbine A8
A8 was moved in response to the defendant’s request. The plaintiffs agreed to pay the cost of construction of a new hayshed
8
The plaintiffs did not tell Mr Bennett the exact distance from the residence to the turbines either at all, or sufficiently promptly
A request for the distance was made on 17 May 2021, and responded to on 25 May 2021
9
The title where the residence on the Land is located to be excluded from Proposed Deed.[54]
Agreed
10
Loss of rent from house on Land being vacant.[55]
Two proposals made by the plaintiffs to provide for compensation if Mr Bennett can substantiate his loss of rental income.[56]
11
A track to be moved to an appropriate area.[57]
Agreed prior to the request.
12
Location of underground cabling next to plantation may damage roots of trees.[58]
Agreed to relocate cabling to avoid damage to roots of trees.
13
There has been a lack of communication, consultation and disclosure of information by the plaintiffs (and their predecessors) in relation to the Project. This includes providing updates about alterations to the Project including the size of wind turbines and planning permit amendments.[59]
Apology made for any lack of past consultation. Noted that a team was working on the project on the ground and there was a commitment to regular and open communication and a good working relationship with landowners.
14
Request for details about subsonic noise and pulsation from turbines.[60]
Information and documents about subsonic noise and pulsation have been provided.[61]
15
Request for documentation in relation to EMF and related health risks.[62]
Plaintiffs consider that potential health risks of EMF associated with wind farms are likely to be low. Information and documents have also been provided to Mr Bennett.[63]
16
Concerns about a duty of care in relation to the Environmental Protection Act 2017.[64]
Project Plans including Environmental Management Plans have been prepared in consultation with Victoria’s EPA and form part of the Planning Permit. Compliance with these plans will ensure the plaintiffs’ activities minimise risk of harm to human health and environment, and comply with the duty of care.[65]
17
Decommissioning payments be made into a trust fund annually as soon as construction work commences.[66]
No requirement imposed by Wind Farm Commissioner for a trust fund to be set up from commencement of construction. Request not agreed. Decommissioning regime for all landowners in the Project is consistent.[67]
18
Request for higher Mega Watt rates.[68]
Not commercially agreed, rates offered are consistent with the rate offered other participants.[69]
19
The plaintiffs are unwilling to meet.[70]
Commitment to regular and open communication noted.[71]
20
The Licence Agreement was entered into based on false representations.[72]
Suggestion that the current proposal does not reflect representations made was expressly refuted.[73]
[50]CB602, CB624.
[51]CB933.
[52]CB610, CB624, CB625, CB934.
[53]CB615, CB608.
[54]CB602, CB625.
[55]CB610.
[56]CB615, CB608.
[57]CB602.
[58]CB602.
[59]CB602, CB600, CB610, CB624, CB930, CB1131, CB1193.
[60]CB600, CB625, CB934.
[61]CB932.
[62]CB934.
[63]CB932.
[64]CB610, CB935.
[65]CB933.
[66]CB934.
[67]CB932.
[68]CB934.
[69]CB932.
[70]CB602, CB600.
[71]CB615B.
[72]CB930.
[73]CB929.
Mr Bennett’s opposition to the Project
The evidence indicates, clearly in my view, that from, at least, mid‑June 2021 Mr Bennett’s support for the Project had diminished. By that time the plaintiffs and Mr Bennett had already been engaged in months of negotiations in respect of the Proposed Deed which was intended to replace the Licence Agreement. Following those negotiations:
(a) on 15 June 2021, Mr Bennett’s solicitor wrote to the plaintiffs’ solicitors stating “I am instructed that Mr Bennett does not wish to proceed with the proposed option and lease”;[74]
[74]CB495.
(b) on 16 June 2021, Ms Stilianos (a solicitor acting for the plaintiffs) was informed that Mr Bennett did not want to be involved in the project, that he did not want turbines on his property and that he had changed his mind since entering into the Licence Agreement;[75] and
(c) between 24 June 2021 and 21 July 2021, after sharing a revised form of the Proposed Deed,[76] the plaintiffs’ solicitors made at least four unanswered requests for an update on Mr Bennett’s position;[77]
(d) on 21 July 2021, Mr Bennett’s solicitor wrote to the plaintiffs’ solicitors stating “… I had previously relayed to you that my client was not prepared to sign the option/licence and lease agreement … I have again confirmed that with my client. He is not prepared to sign the agreements … [for a number of stated reasons]”.[78]
[75]CB494.
[76]CB500.
[77]CB589–91.
[78]CB588.
In around mid-2021, the plaintiffs decided to make a further application to extend the Planning Permit in order to mitigate the risk that the Minister’s earlier decision might be found to be invalid (“Extension Application”). As a town planning matter it was important that an application of this kind was supported and consented to by landowners including Mr Bennett. This was made clear to Mr Bennett in correspondence.[79] The Extension Application was required to be lodged by the end of August 2021.
[79]CB592, CB594, CB598, CB617, CB623A–632D.
In response to the plaintiffs’ request for Mr Bennet’s consent to the Extension Application:
(a) on 3 August 2021, Mr Bennett’s solicitor wrote in an email “With the letter for the extension of time. Mr Bennett has said he does not intend to sign”;[80]
[80]CB595.
(b) on 16 August 2021, after requesting a meeting with Mr Cullen,[81] Mr Bennett told Mr Cullen that he did not want to be involved in the project, including because he believed that wind turbine generators are “illegal”;[82]
[81]CB613.
[82]CB607.
(c) on 24 August 2021, after Mr Cullen sent a text message to the defendant explaining that the Extension Application was critical for the Project, the defendant responded, “I have already given you my agreement” and “You haven’t acceppted [sic]”;[83]
[83]CB617.
(d) on 27 August 2021, Mr Bennett’s solicitor wrote in an email:[84]
[84]CB641.
I note that it has been indicated that Mr Bennett does not wish to participate in the development. I also note that the Licence Agreement is still the relevant document. My client will continue to abide by the terms of the licence agreement and honour his commitments. The comments that Mr Bennett does not wish to participate in the development, should not be seen as a repudiation or recession [sic] of the licence agreement but rather reflects his attitude towards the development and the frustration and lack of consultation he has encountered with the development; [emphasis added]
(e) on 17 August 2021, Mr Bennett’s solicitor conveyed that Mr Bennett would only provide his consent to the Extension Application if two conditions were satisfied.[85] Those conditions were first, there be a 2km setback in respect of the wind turbines from the house on the Land, and second, that the devaluation of his rental house on the Land be addressed. Responses to those issues were provided on behalf of the plaintiffs by their solicitors;[86] and
(f) on 27 August 2021, the Extension Application was lodged without Mr Bennett’s consent.[87]
[85]CB610.
[86]CB615, CB608.
[87]CB627, CB629.
On the basis of the matters set out above, the plaintiffs submit that by, at least 27 August 2021, it should be inferred that Mr Bennett was opposed to the development of the Hawkesdale wind energy facility. I accept the plaintiffs’ submission in this respect. In my view, the inference that Mr Bennett was opposed to the development is clear on the basis of the matters to which reference has been made. The evidence viewed as a whole does not suggest that these apparently clear indications are, in context, in any way equivocal or that there are countervailing matters that would cast doubt on this position.
It should, however, be observed that Mr Bennett did not suggest that the Licence Agreement was no longer on foot, or binding on him. Instead, he instructed his solicitor to inform the plaintiffs that:[88]
[88]CB930.
(a) the Licence Agreement was “still on foot”;
(b) the Licence Fees had been “paid in accordance with the licence”; and
(c) Mr Bennett continued to “abide by the terms of the licence”.
Taken in isolation these matters might be thought to be a countervailing indication but in the context of communications, and later lack of communications, between the parties this cannot be the case. As set out previously in some detail the concerns which Mr Bennett raised in relation to the Project were addressed by the plaintiffs in a manner which was as accommodating as possible in all the circumstances and within the bounds of what was physically possible. In the latter respect I am of the view that the request for a 2km setback of turbines from the house on the Land is a prime example of unreasonable requirements being raised by Mr Bennett effectively in opposition to the Project. As indicated previously, the Land is simply not large enough to accommodate anything like a 2km setback. Clearly, Mr Bennett must have at all times been fully aware of this position. As suggested in submissions that Mr Bennett’s concern may have been to avoid this conduct being characterised as a repudiation of the Licence Agreement which might have been accepted by the plaintiffs and thus provided a cause of action in damages. In the context of communications between the parties this equivocation by Mr Bennett in relation to the Licence Agreement cannot be taken as an equivocation with respect to his then opposition to the Project. As it happens, the plaintiffs have been very careful to indicate in their communications with Mr Bennett that the Licence Agreement remains on foot and that there has been no acceptance of any repudiatory conduct.
Moreover, the inference that Mr Bennett was not interested in proceeding with the Project is also indicated by his failure to engage with the plaintiffs’ attempts to make contact. The plaintiffs continue to seek to engage with Mr Bennett including:
(a) on 15 February 2022, a telephone call with Mr Bennett;[89]
[89]Cullen Statement [38], CB974.
(b) on 3 March 2022, a telephone call with Mr Bennett;[90]
[90]Cullen Statement [39], CB975.
(c) on 10 March 2022, a telephone call with Mr Bennett;[91]
[91]Cullen Statement [41], CB977.
(d) on 18 March 2022, a telephone call with Mr Bennett;[92]
(e) on 21 December 2022, a telephone call with Mr Bennett;[93]and
(f) on 18 January 2023, a telephone call with Mr Bennett.[94]
[92]Cullen Statement [42], CB979.
[93]Cullen Statement [44], CB1124.
[94]Cullen Statement [47], CB1189A.
From November 2022, it became particularly difficult for the plaintiffs to contact Mr Bennett. He refused to provide an email address or telephone number,[95] was no longer legally represented,[96] and directed that correspondence be sent to a postal box address (which he stated would be checked twice a month).[97]
[95]Noting that the plaintiffs have the defendant’s mobile phone number; Alonso Castro Statement [106] (CB96).
[96]Alonso Castro Statement [108], (CB97).
[97]Alonso Castro Statement [107] (CB97).
Request to re-assign the Licence Agreement
On 22 December 2022, Hawkesdale Asset and RCD sent a letter to Mr Bennett notifying him of the imminent commencement of construction of the Project.[98] The letter enclosed various documents including a plan of the construction works to be completed on the Land.[99] In correspondence, Mr Bennett (including through his purported “Special Trustee”, a Mr Keith-Charles Harffey) stated that he did not want to participate in the Project,[100] had “… never come to any agreement about having [wind] towers on our property”,[101] and there was “No Contract”.[102]
[98]Alonso Castro Statement [112] (CB98).
[99]Alonso Castro Statement [115] (CB98); Cullen Statement [45] (CB135), CB1130.
[100]Alonso Castro Statement [116] (CB99); Cullen Statement [46] (CB135).
[101]Alonso Castro Statement [116] (CB99).
[102]Alonso Castro Statement [118](a) (CB100); Cullen Statement [48](c) (CB136).
On 3 April 2023, a letter was sent to Mr Bennett requesting that he provide written consent to assign the Licence Agreement, and all rights and obligations under it from RCD to Hawkesdale Asset.[103] The letter stated, among other things, that:
[103]Alonso Castro Statement [123] (CB102), CB1242.
(a) RCD is the Licensee under the Licence Agreement;
(b) Hawkesdale Asset is the entity responsible for the development of the Project;
(c) the requested assignment would facilitate the construction of the Project and access to the Land was indispensable to the Project;
(d) any delay to construction on the Land would cause substantial loss and damage;
(e) RCD was prepared to enter into an agreement to guarantee the performance of Hawkesdale Asset’s obligations under the Licence Agreement; and
(f) Hawkesdale Asset is ready, willing and able to perform the Licensee’s obligations under the Licence Agreement.
Significantly, in my view, the 3 April 2023 letter to Mr Bennett also contained a further offer to him to enter into a new agreement, on even better commercial terms than those provided under the Licence Agreement. The following table shows the benefit to Mr Bennett, in economic terms, of the offer based on a simplified example to demonstrate the point. In the example set out in the table it is assumed that the Proposed Deed was entered into on 1 January 2023 and the option to convert the Proposed Deed to a Lease is exercised on 1 January 2024.
| Assumptions | Existing Licence Agreement | Proposed Deed and Lease |
| Number of windmills | 3 | 3 |
| Collective generating capacity (of currently proposed wind turbines) | 12.6 mW | 12.6 mW |
| Initial Fee under Proposed Deed | Nil | $35,200.00[104] |
| Calculation of Licence Fee (Licence Agreement) / Rent (Lease) | ~$3026[105] x 12.6 mW | $7000[106] x 12.6 mW |
| Licence Fees/Rent payable until 2065[107] | $2,885,262.08 | $6,585,082.82[108] |
| Total payments | $2,885,262.08 | $6,620,282.82 (noting that further Rent is payable under the Lease after 2065 of approximately $6,106,999.86)[109] |
[104]An Initial Fee of $35,200 would be payable on the Commencement Date for the Proposed Deed. A further Annual Option Fee of $35,200 would be payable on each anniversary of the Commencement Date until the option for lease is exercised (CB505).
[105]An Initial Fee of $35,200 would be payable on the Commencement Date for the Proposed Deed. A further Annual Option Fee of $35,200 would be payable on each anniversary of the Commencement Date until the option for lease is exercised (CB505).
[106]On 3 April 2023, Hawkesdale Asset offered to enter into the Proposed Deed with Mr Bennett. If the option in the Proposed Deed is exercised, the Rent payable under the Lease is calculated according to the installed generating capacity at a rate of $7,000 per mW (CB1242).
[107]Being the expiration of the Term of the Licence Agreement (assuming the Licensee exercises its option to extend the Term under clause 13.2).
[108]This figure assumes that the option is exercised (and the Lease comes into effect) on 1 January 2024.
[109]The Lease would expire in 2084.
Despite numerous attempts that have been made to contact Mr Bennett he has not provided a response to the request to assign the Licence Agreement from RCD to Hawkesdale Asset.[110] On 12 April 2023, Mr Bennett sent a text message, which when read in the context of recent communications with him should, in my view, be inferred as intended to convey his refusal.[111] In any event, if that is not the case, Mr Bennett’s failure to respond to the request for consent must by now be taken to be a refusal. Moreover, Mr Bennett continues to withhold his consent. This conclusion is fortified by the fact that Mr Bennett has chosen not to enter an appearance in this proceeding or to take part in any way.
[110]Alonso Castro Statement [116]–[122] (CB99–102); Cullen Statement [50] (CB137).
[111]Cullen Statement [51] (CB137).
Has Mr Bennett unreasonably withheld his consent?
Applicable legal principles
In International Drilling Fluids Ltd v Louisville Investments (Uxbridge),[112] Balcombe LJ (with whom Mustill and Fox LJJ agreed) set out seven general principles in relation to the reasonableness of consent in the context of assigning a lease. By way of summary, those principles are:
[112]Ltd [1986] Ch 513 (CA) (“International Drilling”), 519–521, cited with approval in Cathedral Place Pty Ltd v Hyatt of Australia Ltd [2003] VSC 385, [29]; Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd [2019] VSC 428, [131].
(a) first, the purpose of a covenant against assignment without the consent of the landlord is to protect the lessor from having their premises used or occupied in an undesirable way, or by an undesirable tenant or assignee;
(b) second, a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing to do with and are extraneous to the relationship of landlord and tenant in regard to the subject matter of the lease;[113]
[113]Secured Income Real Estate (Australia) Ltd v St Martin’s Investments Pty Ltd (1979) 144 CLR 596, 609–610.
(c) third, the onus of proving that consent has been unreasonably withheld is on the tenant;
(d) fourth, the landlord is not required to prove the conclusions that led him to refuse consent were justified, if they were conclusions which might be reached by a reasonable person in the circumstances;
(e) fifth, a landlord may reasonably refuse his consent to an assignment on the ground that the purpose for which the proposed assignee intends to use the premises, even though that purpose is not forbidden by the lease;
(f) sixth, there may be cases where there is such a disproportion between the benefit to the landlord and the detriment to the tenant if the landlord withholds his consent to an assignment that it is unreasonable for the landlord to refuse consent; and
(g) seventh, whether the landlord’s consent to an assignment is being unreasonably withheld is a question of fact which depends on all the circumstances.
In Cathedral Place Pty Ltd v Hyatt of Australia Ltd,[114] Nettle J (as his Honour then was) emphasised the significance of the terms of the relevant contract, its nature, and relations between parties. His Honour stated:[115]
As a matter of principle, and as a matter of authority, Hyatt may have regard to the question of whether the proposed purchaser is a suitable substitute — able to go the distance, and also to the possibility of detriment to any other proprietary and financial interests to which Hyatt may be entitled. Accordingly, Hyatt is entitled to resist the creation of a relationship between itself and the new owner which differs from that created under the Management Agreement. The refusal to consent for either reason would be no more than necessary to ensure that Hyatt continued to enjoy the rights for which it contracted. But as a matter of principle and according to the authorities, Hyatt would not be entitled to refuse consent in order only to acquire rights or benefits to which it was not entitled under or arising out of, or at least contemplated by the agreement. As a matter of principle and as a matter of authority, the refusal of consent for those purposes would operate to deprive the Owner of a benefit for which the Owner had contracted, namely, the right to assign to a suitable substitute consistently with the rights and interests of Hyatt. To adopt and adapt the terms employed by Mason J in Secured Income, it would breach the obligation implicit in the agreement to do all such things as are necessary on Hyatt’s part to enable the Owner to have the benefit of the contract.
[114][2003] VSC 385, [25], [27].
[115][2003] VSC 385, [29] (footnotes omitted).
In Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd,[116] Croft J observed that in relation to determining whether consent has been unreasonably withheld:
It is the task of the Court to discern the real and true reason for a landlord’s refusal of consent. If the landlord’s main aim is to obtain some collateral advantage, for example the surrender of the lease, then refusal of consent is unreasonable.
Reasonableness is judged on an objective basis and confined to issues arising under the lease. A landlord may, in some circumstances, be entitled to take into account whether a proposed transaction may affect his or her property interests where a reasonable person would reach such a view. However, any refusal has to be associated to or connected with the bargain made between the landlord and the tenant under the Lease. The landlord is not entitled to refuse consent on grounds that have nothing to do with the relationship of landlord and tenant. It follows that the landlord is not, at will, able to decide what is reasonable or not.
[116][2019] VSC 428, [132]–[133] (footnotes omitted): see, on appeal [2020] VSCA 199 [33] where these principles were not doubted.
It was also observed by Croft J that obligations of cooperation and good faith are relevant to assessing whether consent has been unreasonably withheld:[117]
Another aspect of refusal of consent is that it would be unreasonable if, in the circumstances, the refusal amounts to a derogation from the grant comprised by the lease and an arbitrary and capricious attempt to deprive the tenant of a benefit under the lease. Intrinsic to a lease is an implied term of cooperation and the implied obligation on the landlord not to derogate from the grant of the demise. The relevant question with respect to the obligation not to derogate from grant is whether the effect of the act disturbs or interferes with the tenant’s occupation. There is also an implied obligation on each party to a lease to do all that is reasonably necessary to secure performance of the lease.
[117][2019] VSC 428, [148] (footnotes omitted): see, on appeal [2020] VSCA 199 [33] where these principles were not doubted.
In Secured Income Real Estate (Australia) Ltd v St Martin’s Investments Pty Ltd,[118] Mason J cited with approval a passage from Colvin v Bowen,[119] to the effect that the desire of a landlord to resume possession of the property in order to occupy it was not a proper ground for refusing consent.
[118](1979) 144 CLR 596, 609.
[119](1958) 75 WN (NSW) 262, 264.
Was Mr Bennett’s consent unreasonably withheld in the circumstances?
The critical question for the Court in these proceedings is whether Mr Bennett has “unreasonably withheld” his consent to the assignment of the Licence Agreement from the second plaintiff, RCD, to the first plaintiff, Hawkesdale Asset.
The plaintiffs submit that Mr Bennett has plainly withheld his consent, in circumstances where:
(a) since November 2020, Mr Bennett has been aware that Hawkesdale Asset was responsible for the Project and was seeking to enter into a Proposed Deed;
(b) throughout those negotiations, Mr Bennett was aware that it was intended he enter into a legal relationship with Hawkesdale Asset in place of his relationship with RCD;
(c) on 3 April 2023, Hawkesdale Asset and RCD made an unequivocal request to Mr Bennett to provide written consent to the assignment of the Licence Agreement and all rights and obligations under it from RCD to Hawkesdale Asset;
(d) Mr Bennett has been served with the documents in this proceeding, in which the plaintiffs claim that Mr Bennett has withheld his consent;
(e) Mr Bennett has responded to those documents, showing that he received them; and
(f) Mr Bennett has not, in any communication sent to the plaintiffs, provided his consent to the assignment of the Licence by RCD to Hawkesdale Asset.
The authorities indicate that if a landlord, when a request is made for their consent, does not give an answer within a reasonable time, then there is a withholding of consent or a constructive refusal of consent.[120] The authorities also indicate that where consent is unreasonably withheld a landlord may effectually assign without consent.[121] True it is that the authorities to which reference has been made are generally with respect to lease provisions, but these decisions are equally applicable to similar provisions contained in a licence agreement.
[120]Provident Capital Ltd v Zone Developments Pty Ltd [2001] NSWSC 843; Lewis v Allenby (1909) Limited v Pegge [1914] 1 Ch 782; Omar Parks Limited v Elkington (1992) 65 P & CR 26, 30.
[121]See Ideal Film Renting Co Ltd v Nielsen [1921] 1 Ch 575; Cominos v Rekes [1979] 2 BPR 9619; Yared vSpier [1979] 2 NSWLR 291; Barina Properties Pty Ltd v Bernard Hastie (Australia) Pty Ltd [1979] 1 NSWLR 480; and Croft, Hay and Virgona, Commercial Tenancy Law (LexisNexis, 4th ed, 2018) [15.9], 475.
It is clear that whilst the plaintiffs bear the onus of proving that Mr Bennett has unreasonably withheld his consent this does not mean that they need to prove his actual reasons for withholding his consent. Nevertheless, the question of whether Mr Bennett’s withholding of consent is unreasonable necessarily involves some weighing of the reasons for which the consent is sought, and any reasons proffered for withholding that consent. In that respect, the plaintiffs rely on the fact that Mr Bennett was offered materially better terms; and Mr Bennett’s express statements that he no longer wished to participate in the Project, and his manifest antipathy toward the Project.
In all of the circumstances to which reference has been made, I am of the opinion that Mr Bennett’s withholding of consent is unreasonable having regard to:
(a) the fact that RCD and Hawkesdale Asset are related companies, with the same ultimate holding company, and that the purpose of the request to consent is to give effect to an internal restructure within the Naturgy Group;
(b) the fact that the predecessor licensees, and in particular, RCD, have complied with all relevant obligations under the Licence Agreement, including the payment of Licence Fees in excess of $200,000;
(c) the significance of the Land to the Project, and Mr Bennett’s obligation under the Licence Agreement to do all things necessary to give effect to the Licence Agreement;
(d) RCD’s expressed willingness to guarantee the performance of Hawkesdale Asset’s obligations under the Licence Agreement, and the readiness, willingness and ability of Hawkesdale Asset to perform the Licence Agreement; and
(e) the offer made to Mr Bennett to instead enter into the Proposed Deed, on terms advantageous to Mr Bennett.
My opinion that Mr Bennett’s withholding of consent is unreasonable is further strengthened when the circumstances to which reference has been made are considered in the context of his obligations under clause 30 of the Licence Agreement to do “all things necessary or desirable to give full effect to this agreement”.[122]
[122]See above, [10].
Moreover, the purpose of the grant to Mr Bennett of the right to withhold consent to assignment of the Licence Agreement is to protect him from having the Land used or occupied in an undesirable way, or by an undesirable assignee. Nevertheless, the Licence Agreement itself governs, namely as a wind farm as part of the Project. Mr Bennett agreed to that when he entered into the Licence Agreement, there is no evidence of anything undesirable about Hawkesdale Asset as a Licensee.
For the preceding reasons I find that the real reason Mr Bennett has withheld his consent to the assignment of the Licence Agreement is, plainly, because he no longer wishes to have wind turbines constructed on the Land. That is, however, a matter which is extraneous to the purpose for which the right to withhold consent was granted. It would entirely defeat, or render valueless, the Licensee’s right to assign if Mr Bennett could refuse such assignment in order to prevent the construction of the wind turbines.
Relief
Declaratory relief
The primary relief that the plaintiffs seek is declaratory relief that Mr Bennett’s withholding of his consent to an assignment of the Licence Agreement from RCD to Hawkesdale Asset is unreasonable and in breach of cl 23.1 of the Licence Agreement. The breadth of the jurisdiction to grant declaratory relief was recently considered in Hobart International Airport Pty Ltd v Clarence City Council, where Kiefel CJ, Keane and Gordon JJ said:[123]
The question must be real, not theoretical. There must be a proper contradictor - someone presently existing who has a true interest to oppose the declaration sought. And the applicant must have a “sufficient” or “real” interest in obtaining the relief. There is no requirement that an applicant for declaratory relief have a cause of action in order to obtain it. Those principles are not exhaustive.
[123](2022) 96 ALJR 234, [32] (footnotes omitted).
The proposed declaratory relief sought here is real, not theoretical: the plaintiffs have a real commercial interest in establishing that Mr Bennett’s withholding of his consent was unreasonable and in breach of the Licence Agreement. Mr Bennett is a proper contradictor, who has a true interest in opposing the declaration, but has chosen not to participate. And there is no doubt that the plaintiffs have a real interest in obtaining the relief. For all of those reasons, declaratory relief should be ordered.
Specific performance
Specific performance may be granted where the subject matter of the contract is unusual or unique and as a result cannot be easily obtained elsewhere.[124] Where an interest in land is involved, an agreement may be regarded as specifically enforceable.[125] Specific performance may be granted where damages cannot satisfy the demands of justice, or when the Court can by granting specific performance instead of damages do more perfect and complete justice.[126]
[124]Dougan v Ley (1946) 71 CLR 142.
[125]Coulls v Bagot’s Executor & Trustee Company Ltd (1967) 119 CLR 460, 503.
[126]Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Ltd [2007] NSWCA 276, [73]; Coulls v Bagot’s Executor & Trustee Company Ltd (1967) 119 CLR 460, 503.
Specific performance, in the form of an order requiring Mr Bennett to consent to the assignment of the Licence Agreement by RCD to Hawkesdale Asset, or alternatively, an order under s 22(1) of the Supreme Court Act 1986 ordering the Prothonotary to provide such consent on behalf of Mr Bennett, is appropriate in this case, in circumstances where:
(a) the Licence Agreement creates an interest in the Land;[127]
(b) the Land is critical to the Project, and it will not be possible for Hawkesdale Asset to complete the construction of the entire Project without access to the Land;[128] and
(c) the plaintiffs will suffer substantial damages if they are not granted access to the Land.
[127]Licence Agreement, cl 2 (CB147).
[128]Alonso Castro Statement [125] (CB104).
The plaintiffs submitted that if the Court is not satisfied that Mr Bennett has unreasonably withheld his consent, then the alternative course would be that RCD would seek an order that it not be restrained from entering upon the Land under and in accordance with the terms of the Licence Agreement. Having regard to the finding that consent has been unreasonably withheld, it is not necessary to take this possibility any further save to observe that, for the preceding reasons, were I not to have formed the view that consent was unreasonably withheld I would have granted RCD the order it would have sought in those circumstances.
Injunctive relief
The plaintiffs made reference to the statement by Evershed MR in Pride of Derby v British Celanese Ltd:[129]
[129][1953] Ch 149, 181, cited with approval in Meagher, Gummow & Lehane (5th) Ed at [21-095].
It is, I think, well settled that if A proves that his proprietary rights are being wrongly interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered.
The plaintiffs contend that this is the circumstance in the present proceedings where:
(a) the Licence Agreement creates an interest in the Land;[130]
[130]Licence Agreement, cl 2 (CB147).
(b) Mr Bennett has interfered with RCD’s interest in the Land both in refusing to provide his consent, and in refusing access to the Land, in circumstances where:
(i) the plaintiffs have made numerous requests to arrange access to the Land so that contractors could enter onto the Land to undertake geotechnical works, which Mr Bennett has refused to provide;
(ii) Mr Bennett has refused to consent to construction commencing on the Land; and
(iii) Mr Harffey, apparently on behalf of Mr Bennett, has stated that no one is to enter the land without written permission;
(c) the only reasonable inference which can be drawn from Mr Bennett’s refusal to respond, or to participate in the proceeding, is that his refusal to provide access to the Land will continue; and
(d) the plaintiffs will suffer substantial damages if they are not granted access to the Land. Mr Bennett does not hold assets which come even remotely close to satisfying the full extent of any damages award.[131] The damages would include:
[131]CB139–142; Sixth Lucarelli Affidavit [6]–[8]; Fifth Lucarelli Affidavit [6]–[15].
(i) additional costs of approximately $1.2 million (comprising staff expenses, lease costs, constructing phase site running expenses, machinery and labour costs and concrete batch plant hire cost), if Hawkesdale Asset is not granted access to the Land until the end of July 2023;[132]
[132]Alonso Statement [150]; (CB116).
(ii) additional costs of approximately $1.95 million, if Hawkesdale Asset is not granted access to the Land until the end of August 2023;[133]
[133]Alonso Statement [155] (CB117).
(iii) if there were delays beyond August 2023, substantial (and presently unquantifiable) additional costs associated with Hawkesdale Asset either paying its contractors and their subcontractors to either remain idle on the site or re-engaged after access to the Land is obtained;[134] and
(iv) if access to the Land was never obtained, the wasted costs of acquiring the three turbines which were to be constructed on the Land from Vestas of approximately €698,068.69.[135]
[134]Alonso Statement [156]–[158] (CB117–18).
[135]Alonso Statement [163] (CB119).
I accept the plaintiffs’ contentions in this respect and, accordingly, will grant the relief sought.
Evidentiary matters
In the present circumstances where Mr Bennett neither sought to be represented in these proceedings or to take part either in pre-trial and other matters or at the trial itself I indicated to the plaintiffs that it is important, as a matter of procedural fairness, that the basis upon evidence is tendered in these proceedings should be made very clear and set out in detail. The plaintiffs provided submissions on evidentiary matters in their Plaintiffs’ Written Closing Submissions (6 July 2023).[136] I accept these submissions on the evidence, submissions which are set out in the Annexure to these reasons.
[136]See [2]–[7].
Conclusions and orders
For the preceding reasons the plaintiffs are entitled to the relief sought by way of a declaration that Mr Bennett’s withholding of his consent to an assignment of the Licence Agreement from RCD to Hawkesdale Asset is unreasonable and in breach of clause 23.1 of the Licence Agreement together with declaratory, specific performance and injunctive relief as indicated previously.
The plaintiffs have provided orders which give effect to these reasons which, accordingly, will be made. As those orders indicate, the plaintiffs seek costs on a standard basis. Having regard to the findings made in these proceedings and Mr Bennett’s conduct with respect to these proceedings and more generally I am of the view that a costs order as sought is entirely appropriate.
Annexure
THE EVIDENCE
The plaintiffs rely on the evidence of two witnesses:
(a) Guillermo Alonso Castro, whose witness statement is Exhibit 1,[137] and who also gave evidence in chief;[138] and
[137]T190, CB63–119.
[138]T183–190.
(b) Daniel Kenneth Guiseppe Cullen, whose witness statement is Exhibit 2,[139] and who also gave evidence in chief.[140]
[139]T193, CB120–137.
[140]T192–196.
The plaintiffs also rely on six affidavits sworn by the plaintiffs’ solicitor, Peter Michael Lucarelli, for the following purposes:
(a) the first and second affidavits of Mr Lucarelli sworn on 26 April 2023[141] and 28 April 2023,[142] were made in support of an application for substituted service orders. Those affidavits deposed to attempts to effect personal service of the Writ and Statement of Claim on Mr Bennett, and other attempts made to bring this proceeding to his attention;
[141]CB32.
[142]CB47.
(b) the third affidavit of Mr Lucarelli sworn on 23 May 2023[143] was made after substituted service orders had been made by Efthim AsJ on 1 May 2023.[144] This affidavit deposes to the steps taken by the plaintiffs to comply with those orders;
[143]CB52.
[144]CB21.
(c) the fourth affidavit of Mr Lucarelli sworn on 5 June 2023[145] deposes to steps taken to notify Mr Bennett of the directions hearing on 9 June 2023, the plaintiffs’ proposed orders for that hearing and the trial date in this proceeding;
[145]CB58.
(d) the fifth affidavit of Mr Lucarelli sworn on 28 June 2023[146] deposes to the following:
[146]CB138.
(v) that the correspondence sent and received by the plaintiffs’ solicitors, Baker McKenzie (and identified in Mr Alonso Castro’s and Mr Cullen’s witness statements) were in fact sent and received;
(vi) searches undertaken to determine the assets currently held in Mr Bennett’s name; and
(vii) further steps taken to bring this proceeding to the attention of Mr Bennett including by sending to him timetabling orders made on 9 June 2023 and the witness statements filed by the plaintiffs; and
(e) the sixth affidavit of Mr Lucarelli sworn on 6 July 2023[147] deposes to the following:
[147]Sixth Affidavit of Peter Michael Lucarelli sworn 6 July 2023 (“Sixth Lucarelli Affidavit”).
(i) searches undertaken relevant to the value of Mr Bennett’s real property in Victoria;
(ii) the lodgment of a caveat over the Land in the name of RCD;
(iii) steps taken to bring the Court Book, List of Authorities and Outline of Opening Submissions to Mr Bennett’s attention; and
(iv) searches undertaken relevant to the nature of Mr Bennett’s interest in the property the subject of the Licence Agreement.
Finally, the plaintiffs rely on the documents contained behind Tabs 12–31 and 33–216 of the Court Book, including the following documents handed up during the course of the trial numbered as follows:
(a) CB172A-C;[148]
[148]T83.
(b) CB395-CB411, a version of which was handed up to the Court with some redactions removed;[149]
[149]T73.
(c) CB476A-B;[150]
[150]T133.
(d) CB481A-E;[151]
[151]T195.
(e) CB487A-B and its attachment numbered CB487C;[152]
[152]T99–100.
(f) CBB499A-B;[153]
[153]T139.
(g) CB623A-D;[154]
[154]T157.
(h) CB930A-D;[155]
[155]T134.
(i) CB931A-B;[156] and
[156]T136.
(j) CB1189A-B.[157]
[157]T196.
However, out of an abundance of caution, the plaintiffs do not rely on, and ask the Court not to have regard to, the following documents, on the basis that they may constitute privileged communications sent advertently:
(a) the email at CB625–626 sent on 25 August 2021 at 12:15pm; and
(b) the email at CB936 sent on 3 September 2021 at 9:26am.
The plaintiffs otherwise note that the following documents have been redacted:
(a) the Wind Turbine Supply and Install Contract between the first plaintiff and Vestas Australian Wind Technology Pty Ltd (for commercially‑sensitive information);[158]
[158]CB224.
(b) the Asset Transfer Agreement (for commercially-sensitive information);[159]
[159]CB395.
(c) an email dated 16 June 2021 from Mr Alonso to Baker McKenzie (for information which remains subject to legal professional privilege);[160]
[160]CB421.
(d) an email from Baker McKenzie to Mr Alonso (for information which remains subject to legal professional privilege);[161]
[161]CB494.
(e) part of an email chain dated 21 July 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[162]
[162]CB588.
(f) part of an email chain dated 4 August 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[163]
[163]CB594.
(g) part of an email chain dated 17 August 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[164]
[164]CB610.
(h) an email dated 24 August 2021 from Mr Reguera to Baker McKenzie (for information which remains subject to legal professional privilege);[165]
[165]CB616.
(i) part of an email chain dated 27 August 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to a claim of legal professional privilege);[166]
[166]CB640.
(j) part of an email chain dated 2 September 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[167]
[167]CB928.
(k) part of an email chain dated 3 September 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[168]
[168]CB930A.
(l) part of an email chain dated 19 October 2021 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[169]
[169]CB944.
(m) part of an email chain dated 28 October 2022 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege);[170] and
[170]CB1010.
(n) part of an email chain dated 22 November 2022 between Baker McKenzie and Maddens Lawyers (the redactions cover a forwarding email which is subject to claim of legal professional privilege).[171]
[171]CB1076.
Although Mr Bennett has chosen not to defend this proceeding, and so there is no objection to any of the plaintiffs evidence, nonetheless, the plaintiffs make the following submissions in relation to the admissibility of the evidence:
(a) save for the documents that were handed up in the course of the trial, all of the documents included in the Court Book are either referred to in the witness statements of Mr Alonso and Mr Cullen, or are exhibited to the affidavits of Mr Lucarelli;
(b) the documents are relevant in that they could rationally affect (directly or indirectly) the assessment of the probability of the existence of the facts in issue in the proceeding. The way in which the documents could affect the existence of the facts in issue is apparent from the substantive submissions below. They are therefore admissible;[172]
[172]Evidence Act 2008, ss 55–56.
(c) many of the documents record communications (in the form of emails and letters) between representatives of the plaintiffs and either the defendant, or representatives of the defendant. Insofar as there is any concern that those documents may infringe the hearsay rule:
(i) the hearsay rule does not apply to business records, and the emails and letters themselves are business records of the plaintiffs or Baker McKenzie;[173]
[173]Evidence Act 2008, s 69.
(ii) the hearsay rule does not apply to electronic communications insofar as the representation is as to who they were sent by or to, and the date and time that they were sent;[174]
[174]Evidence Act 2008, s 71.
(iii) Mr Lucarelli in any event deposes that the emails and letters sent or received by Baker McKenzie were sent or received;[175]
[175]CB142.
(iv) the fact that the communication was made to Mr Bennett, or received from Mr Bennett, is relevant to the question of the reasonableness of Mr Bennett’s withholding of his consent, independently of whether the representations made in the communications are true, and the hearsay rule therefore does not apply as the evidence is relevant for a non‑hearsay purpose;[176]
[176]Evidence Act 2008, s 60.
(d) the plaintiffs could have sought, but have chosen not to seek, a limiting order under s 136 of the Evidence Act 2008 (Vic), on the basis that the plaintiffs’ position is that many of the representations made by Mr Bennett in correspondence are untrue, there is no sworn evidence of those propositions, and they have not been able to test Mr Bennett’s assertions in cross‑examination. They have chosen not to do so because they have had the opportunity in this trial to meet and respond to those assertions with their own evidence, and therefore submit that Mr Bennett’s assertions should not be accepted;
(e) Mr Alonso gives evidence of matters of opinion.[177] Insofar as there is any concern that those opinions may infringe the opinion rule, Mr Alonso has specialised knowledge based on his training and experience and his opinions are wholly or substantially based on that knowledge;[178] and
[177]Alonso Castro Statement (CB104–CB105, CB114, CB117–CB119).
[178]Alonso Castro Statement (CB65–CB68).
(f) finally, insofar as the searches undertaken relevant to the value of Mr Bennett’s real property in Victoria, to which Mr Lucarelli deposes, are evidence of an opinion of the value of that property, it would involve unnecessary expense or delay to adduce expert evidence of the value of those properties, and the Court may order that the opinion rule does not apply.[179]
[179]Evidence Act 2008, s 190.
* * * * * * *
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Witness Statement of Guillermo Alonso Castro dated 23 June 2023 (“Alonso Castro Statement”),
[18]–[22].
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