Kelrit Investments Pty Limited v Transform Composites Holdings Pty Limited - [2003] FCA 662

FEDERAL COURT OF AUSTRALIA
Kelrit Investments Pty Limited v Transform Composites Holdings
Pty Limited [2003] FCA 662
CONTRACT – oral representation to exercise lease option – reliance on offer – whether oral contract operated as variation of lease – conformity with writing requirements of s 23C and s 54A of Conveyancing Act 1919 (NSW)
TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) –conduct that is misleading or deceptive (s 52) – damages under s 82 - whether loss or damage suffered as a result of reliance on representation
DAMAGES –inconsistent remedies
Conveyancing Act 1919 (NSW) ss 23C, 54A
Trade Practices Acts 1974 (Cth) ss 52, 82
Fair Trading Act 1987 (NSW) s 42
Beaton v McDivitt (1987) 13 NSWLR 162 applied
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 distinguished
Baloglow v Konstanidis [2001] NSWCA 451 applied
Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127 referred to
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 referred to
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 referred to
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 35 applied
Tang Man Sit v Capacious Investments Ltd [1996] AC 514 applied
Marks v GIO Australia Holdings Pty Ltd (1998) 96 CLR 494 applied
Mason et al, Restitution Law in Australia (1995)
Goff et al, The Law of Restitution (6^th ed, 2002)
Robertson, ‘The Statute of Frauds, Equitable Estoppel and the Need for “Something More”’ (2003) 19 Jo Contract L 173.
KELRIT INVESTMENTS PTY LIMITED ACN 002 623 065 v TRANSFORM COMPOSITES HOLDINGS PTY LIMITED ACN 066 929 158, RALPH ASQUITH, BRIAN NESS
N613 of 2001
FINN J
3 JULY 2003
CANBERRA (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N613 OF 2001

BETWEEN:

KELRIT INVESTMENTS PTY LIMITED
ACN 002 623 065
APPLICANT

AND:

TRANSFORM COMPOSITES HOLDINGS PTY LIMITED ACN 066 929 158
FIRST RESPONDENT

RALPH ASQUITH
SECOND RESPONDENT

BRIAN NESS
THIRD RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

3 JULY 2003

WHERE MADE:

CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT:
1.The applicant make its election in light of these reasons and file and serve proposed Minutes of Order within 14 days of the date of this judgment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N613 OF 2001

BETWEEN:

KELRIT INVESTMENTS PTY LIMITED
ACN 002 623 065
APPLICANT

AND:

TRANSFORM COMPOSITES HOLDINGS PTY LIMITED ACN 066 929 158
FIRST RESPONDENT

RALPH ASQUITH
SECOND RESPONDENT

BRIAN NESS
THIRD RESPONDENT

JUDGE:

FINN J

DATE:

3 JULY 2003

PLACE:

CANBERRA (HEARD IN SYDNEY)

REASONS FOR JUDGMENT
The Parties

The applicant, Kelrit Investments Pty Ltd (“Kelrit”) was incorporated for the purposes of a family business in 1983. Though it diversified over time its core business was that of fibreglass moulding and manufacturing this being conducted at premises it owned at 50 Clyde St, Broadmeadows in Newcastle. By 1990 that part of its business was carried on under the name “Transform Composites”. In 1994 it was sold by Kelrit to the first respondent, Transform Composite Holdings Pty Ltd (“Transform”) as a result of a management buyout proposal put by the second and third respondents, Ralph Asquith and Brian Ness who were respectively, a director and the managing director of Transform.
From about the time of the sale to Transform the directors and shareholders of Kelrit were the founder’s children, Clive Hawkins, Renee Hawkins and Chris Hawkins.
The 50 Clyde Street Property
This property was bought by Kelrit in 1988 for $2.2 million. It contained a number of industrial buildings which were divided into discrete areas which were referred to as “sheds”. The largest of these (“the main building”) was a saw toothed structure built in the early 1900s which housed shed 9, 11, 11A, 11B, 12, 13A, 13B, 13C and 13D.
In August 1998 Transform leased the main building from Kelrit under a four year lease commencing 1 October 1996 with a five year option from 1 October 2000. Transform had previously occupied the premises under shorter term tenancies.
When Kelrit purchased the site in 1988 the purchase included the dismantled steel frame of an open portal building. That frame is of some significance in this proceeding.
In September 1989 substantial damage was done to the Clyde Street property by the Newcastle earthquake. Kelrit’s insurance claim for damage suffered resulted in a cash settlement with its insurer.
The Present Claim
Parts of the main building (sheds 13A, 13B, 13C and 13D) were substantially damaged by fire on 18 August 1998. Kelrit’s case is that, shortly after the fire, both Mr Ness and Mr Asquith represented and offered to Kelrit (though Clive and Renee Hawkins) that if Kelrit rebuilt the damaged part of the main building to the specifications and to meet the requirements of Transform, Transform would remain in possession of the premises for the balance of the term of the lease and would exercise the option.
Kelrit, relying it is said upon the representations of, and its contract with Transform rebuilt the main building as required by Transform. In late November 1999, Transform indicated it had no need for the premises and would not be exercising the option. It vacated the premises at the end of September 2000 on the expiration of the lease.
Kelrit’s claims against Transform are (i) for damages under s 82 of the Trade Practices Act 1974 (Cth) (“the TP Act”) in respect of a contravention of s 52 of that Act; (ii) for damages for breach of contract; and (iii) for compensation in equity. The claims against Mr Asquith and Mr Ness are under the accessory liability provisions of the TP Act (s 75B) and under s 42 of the Fair Trading Act 1987 (NSW).
To foreshadow what follows, Mr Asquith and Mr Ness deny making the representations and offers on which Kelrit’s claim is based. I have not accepted their denials.
There is a substantial dispute between the parties as to whether, in the event of a contravention of the TP Act or a breach of contract being found, Kelrit actually suffered loss and damage. I will consider separately the questions of contravention/breach of contract and of damages.
Transform’s lease
There are only two parts of the 1996 four year lease to which it is necessary to refer. First, clause 4:03 (as varied) made provision for the respective rights and obligations of the lessor or lessee in the event of destruction or damage in whole or in part of the leased premises by fire. A proviso to that clause stipulated that if such destruction or damage occurred, then:
“if the demised premises shall not be rebuilt or made fit for the occupation and use of the lessee or shall not become accessible to the lessee within six (6) months of the date upon which such destruction or damage or such inaccessibility shall have occurred then at or after the expiration of such period either party may determine this lease by giving written notice of cancellation to the other party.”
What I would emphasise is that this provision imposed no mandatory obligation on Kelrit to rebuilt in the event of total or partial destruction of the main building by fire.
The lease provided for an option to renew for a further five years in the following terms (insofar as presently relevant):
“If the Lessee shall desire to take a renewed lease of the demised premises from the expiration of the term of this Lease for a further term of [five] years … and shall give to the Lessor not less than three (3) months notice in writing thereof … the Lessor shall at the cost and expense of the Lessee grant to the Lessee a lease of the demised premises for the same further term … PROVIDED HOWEVER that the granting of a renewed Lease pursuant to the option herein contained is dependant upon the exercise of the option in the manner herein provided …”
Factual Setting
The applicant’s case is founded on a number of discussions and communications between one or other or both of Clive Hawkins and Renee Hawkins on the one hand and Mr Asquith and Mr Ness on the other. The substance of these discussions and communications is contested by Mr Asquith and Mr Ness as, in some instances, is the occurrence of them. The issue of credibility looms large in all of this.
Before detailing those discussions in their context it is necessary to refer to several matters by way of background.
1. Background
The fibreglass moulding and manufacturing business acquired by Transform from Kelrit in October 1994 was that of a contract manufacturer for specific works. At the time of the management buyout it had six main contracts. The majority of these were with Goninan & Co Pty Ltd (“Goninan”) and related to the Tangara train contracts that had been let by the New South Wales Government and were nearing completion.
The initial lease taken of the 50 Clyde Street property in October 1994 was for one year with an option to renew for one year. In mid-1995 Transform was awarded a further contract by Goninan that was scheduled for completion in 2000.
During 1995 negotiations for a new lease with Kelrit commenced. A number of interim arrangements were made while they progressed. They resulted in a four year lease which governed the parties’ relationship at the time of the fire.
It is Mr Asquith’s evidence that from 1996, Transform continued to operate profitably. Its business remained that of a contract manufacturer but was diversified by securing some non-rail contracts and rail contracts other than with Goninan. In late 1996 Transform entered into a joint venture agreement with Steven Mitchell. Between 1994 and 1996 Mr Mitchell has built a machine known as the “five axis machine”. It was used for the automated cutting, shaping and sanding of patterns to make moulds used in the manufacture of fibreglass products including power boats.
At the time of the fire the five axis machine was being operated by the joint venturers at a Goninan building near to 50 Clyde Street. It is Mr Mitchell’s evidence that the size of that building limited the utility of the machine. A roof clearance of eight metres or more was needed for it to be fully used. He also indicated other specific requirements or desirable features of a building to house the machine.
According to Mr Mitchell, a number of weeks after the fire he had a conversation with Mr Asquith in which it was indicated that Mr Asquith and Mr Ness were planning to move the joint venture to 50 Clyde Street. He also gave evidence of discussions he had with Mr Ness and Mr Asquith in late 1998 concerning the dimensions and details of construction of the proposed new building at Clyde Street and specifically what was desirable for the purposes of accommodating the five axis machine. He had been told that the dismantled steel portal frame building that had been purchased by Kelrit in 1988 would be used in the construction as “it will give us the height needed”.
The joint venture came to an end in about February 1999. It was Mr Ness’ evidence that the joint venture constituted less than 5 percent of Transform’s business.
The actual financial position of Kelrit at the time of the fire cannot be stated precisely given the evidence on this matter, the more so as Kelrit was only one of an unstated number of companies through which the family business seems to have been conducted. The relationship between these companies, particularly in respect of guarantees inter se, is quite unclear.
It is clear that while relatively speaking Kelrit was asset rich, it carried debts at mid-1998 in the order of $900,000 though only about half of this amount was recorded in its balance sheet as a current liability. Kelrit’s only real source of income at the time, according to Ms Hawkins came from rentals on the 50 Clyde Street property, and about 90 per cent of that income came from Transform’s rent. Transform’s monthly payment as at August 1998 was $24,500 per month.
Renee Hawkins view was that “Kelrit’s financial position at the time was precarious and I felt that the company’s debt was costing too much to service”. Her own wish prior to August 1998 was for Kelrit to sell its properties, retire its debts and divide what remained amongst the three shareholders. Kelrit had been looking to sell the Clyde Street property from 1996 and continued to do so throughout the period of present relevance. At the time of the fire a program of asset sales to retire debt was being implemented.
Ms Maybury, an accountant who was called by Kelrit to give expert evidence, ventured the opinion that the company was financially unstable (a view derived from Kelrit’s balance sheets for 1996 and 1997) and that it would have difficulty as at 30 June 1998 in repaying its current liabilities over the next twelve months. Her evidence in this, though, needs to be treated with some caution given that some assumptions she made in expressing this opinion may be lacking a factual foundation.
2. The Fire and its Aftermath
The fire on 18 August occurred in sheds 13A, 13B and 13C in the main building. Transform, as noted earlier, was lessee of the entirety of the main building. There were other unoccupied sheds in small buildings on the 50 Clyde Street site at the time.
The first sequence of discussions consequent upon the fire occurred between the date of the fire and the end of August 1998.
(a) 18 August
There was a discussion between Mr Hawkins and Mr Asquith at the scene of the fire on 18 August. There is a dispute as to what was said. Clive Hawkins’ version was Mr Asquith raised the question of a short term lease of sheds 8 and 8A to which he indicated to Mr Asquith that Kelrit would be seeking a long term commitment from Transform relating to its continuing occupation of the site before it decided on any course of action. He said he indicated that their preferred option would be “a negotiated cash settlement with the insurance company rather than reconstructing a building if it were to become surplus to our needs within 12 months”; Kelrit’s first priority was to reduce its mortgage liability on Clyde Street and then to secure a long term lease of the remaining buildings. Mr Asquith is said to have indicated that the building would not become surplus “if we exercise our option”. He also is said to have referred to Transform’s future prospects and to have mentioned that it had formed a joint venture company and “we may move that to our site”.
For his part, Mr Asquith said he told Clive Hawkins he did not have time to talk and proposed a meeting for the following day. He denied any discussions were had about arrangements to deal with the consequences of the fire.
Renee Hawkins gave evidence of a short conversation she had with Mr Asquith at the site of the fire. Mr Asquith said he had no recollection of it.
(b) 19 August
A meeting occurred between Clive Hawkins and Mr Asquith at Transform’s office on the 50 Clyde Street site and lasted for about half an hour. Mr Asquith’s version is that they discussed site safety and he also indicated that Transform would “like to be kept informed about the type of building that will replace the damaged one”. He denied that the question of Transform taking up the option to renew was raised in his presence nor was the possibility of Kelrit taking a cash settlement.
Clive Hawkins’ evidence is at sharp variance with Mr Asquith’s. Mr Hawkins said that, after discussion of Transform’s leasing of shed 8 and 8A he indicated that their main concern was to reduce their mortgage liability on the property and then secure a long term tenant: “we are not interested in a short term fix for you”.
Mr Asquith is said to have replied to the following effect.
“Asquith: “I understand that. We are very confident of securing a number of contracts. It doesn’t matter who gets the principal contract – we are sitting in the box seat for the sub-contract work. We have gone into a joint venture project with Steve Mitchell. We have hired the old Goninan Platers building and we have relocated Steve Mitchell to work over there. We are developing a five axis machine. It cuts and rotates styrofoam blocks into shapes for moulds to be sprayed in polyurethane foam. We have only signed a short term lease with Goninan Platers. We can’t bring it onto our site because none of the buildings have the required 8 metre clearance. If you allow us to liaise with you on the type of building that is constructed, we would be prepared to bring the joint venture onto your site.”
Me: “We’re only too happy to help you as long as we get a long term commitment. We don’t want to be left with a building that is of no use to us if you don’t take up your option.”
Asquith: “That won’t be a problem.””
Kelrit claims that the above exchange contains the first representation that the option to renew would be exercised.
(c) Mr Asquith’s 20 August 1998 letter
Mr Asquith described the following letter, variously, as his “notes” and as “detailing what has been discussed” though there is nothing on the face of the document to suggest it had such a character. It read (omitting formal parts):
“Further to our meeting on Wednesday 19 August 1998.
1)        Rental adjustment required is as follows:
Total floor area         (inclusive of mezzanine level)            7728 M2
Fire Damaged Area  1490 M2
Fire Damaged Area - % of total        19.28%
Total Rent/Month  $24500
Rent Decrease Required        $24500 x 19.28%                   $4723.60
2)        Transform will rent Shed 8 and adjoining yard space for the next six months at $3000 per month. Please have a lease agreement drawn up and forwarded to me.
3)        Shed 3 will be cleaned out and made available to store items previously stored in shed 8.
4)        Transform will endeavour to keep paying full rent of $24500 per month for the next six months and an adjustment will be made after that date to reflect the above changes. Hopefully by this time the loss of rent insurance will have been paid.
5)        We would like to liaise with Kelrit to determine the type of building structure used in the building reconstruction.
Please do not hesitate to contact me should you require any further information.” Emphasis added.
Transform highlights the absence of any reference in this to exercising the option to renew.
(d) 20 August meeting (Ness)
Both Mr Ness and Mr Asquith depose to a meeting between Clive Hawkins and Mr Ness (with Mr Asquith standing nearby) at which (i) Clive Hawkins is said to have indicated he was considering using the dismantled steel portal frame to rebuild the destroyed building and (ii) Mr Ness indicated that Transform would like to ensure that the building was suitable for its future needs.
It is Clive Hawkins’ evidence that this “conversation simply did not happen”. He denies suggesting to Mr Ness that the steel frame be used for rebuilding and contends that it was suggested by Mr Ness at a meeting on 7 September 1998 (below).
(e) Late August meeting: Clive Hawkins – Asquith
In his first affidavit Clive Hawkins referred to the following conversation with Mr Asquith in late August:
“Me: “We’re still thinking of taking a cash settlement on the building insurance.”
Asquith: “You can’t do that. We’ve had legal advice to the effect that you’re obliged to put up a new building. You had better get some advice.””
Mr Asquith made no reference to this conversation in his affidavit filed prior to the commencement of the trial. He swore a second affidavit on 13 March 2003 after he had heard the evidence both of Clive and of Renee Hawkins. That evidence is said to have “refreshed” his recollection and he recalled the details of a conversation with Clive Hawkins in late August or early September. The affidavit contained the following:
“3.It was a short conversation. My recollection of this conversation is that it included an exchange to the following effect:
Hawkins:        “I am thinking of taking a cash settlement.”
Me:“My understanding is that you are obliged to rebuild under the lease otherwise we have the option to terminate the lease. But if you rebuild, then we are obliged to continue the lease.”
Hawkins:“Are you prepared to exercise the option under the lease if we rebuild?”
Me:                 “I can’t guarantee that.”
Hawkins:        “What else is in the lease?”
Me:                 “You need to see Paul Trisley and get some advice.”
4.I do not now recall whether I discussed the above exchange with Brian Ness or not. I would usually discuss such matters with him.
5.I also now recall that I looked at the lease in preparation for any meeting with Clive Hawkins on 19 August 1998.”

In cross-examination on 13 March 2003 Mr Asquith indicated he had not taken legal advice in relation to the obligation to rebuild. He just read the relevant clause himself and he understood that there was not any absolute obligation to rebuilt the building. The following day in cross-examination he accepted that he had said to Clive Hawkins in late August that “We’ve had legal advice to the effect that you are obliged to put up a new building”. He denied this later statement was false. He said the legal advice was received in 1996 when they were going through the lease with their solicitor. His recollection of that advice was to the same effect as his “plain reading” of the relevant clause of the lease.
Kelrit has submitted that Mr Asquith’s second affidavit is a fabrication.
(f) 7 September 1998 meeting
This is the principal meeting relied upon by Kelrit in both its TP Act and contract claims. It was held in Transform’s offices and was attended by Mr Asquith, Mr Ness, Mr Hawkins and Ms Hawkins. Each gave their own account of the meeting.
According to Mr Hawkins, the following exchanges occurred:
“Asquith: We want you to put up a new building to take the five axis machine. We will then move our joint venture with Steve Mitchell on site. The machine needs a lot of space to operate and we will need a suitable crane installed.
Clive Hawkins: We need to make a decision. We’re starting to get pressure from the insurers to move things along. We’re happy to help you but we need a long term commitment. Can you give us the exact configurations of the building you want?”
Mr Ness then produced (and signed and dated) a diagram of the building that was desired. He went on to describe it. It required an eight metre clearance. The dismantled steel frame building on the site could be used for such a purpose. After Mr Ness had spoken, Mr Hawkins recounted the following occurring:
“Clive Hawkins: That’s fine – just so long as you’re prepared to take up the 5 year option on your lease.
Asquith: We don’t have a problem with that.
Ness: It would be nice to have that type of steel frame building because of the cranage that it would allow. The advantage of using the steel frame is that we will be able to install heavier cranage if need be in the near future. The other advantage of using the steel frame is that it is already on site. We need to get it up as soon as possible as we don’t want to incur penalties on our contracts.
Asquith:          If we bring the joint venture onto the premises, we will basically have our whole operation on the one site which will allow us to have greater supervision of the work.
…
Clive Hawkins: You’re happy with this? If we give you this with our steelwork, you’ll be happy with that?
Ness:   Yes
Clive Hawkins: Fine. We can finally get things moving. We’ll be able to tell Strath Castle and Alan Turner what we want. We can get things underway. We can give you exactly want you want, so long as you exercise the 5 year option – we could have difficulty leasing this kind of building to anyone else.
Asquith:         We don’t have a problem with that.”
Renee Hawkins account was in the following terms:
“Asquith: Clive’s told you that we want you to build a new building on the site. Our joint venture with Steve Mitchell uses this machine to make the fibreglass moulds. It requires a lot of space to operate. We want to get the machine off the Goninan Platers site because the building there isn’t big enough. We want about 8 metres clearance, we also want a purpose built crane.
A diagram was then handed over.
Ness: This is the building what we want. We can use your dismantled steel frame for the building in the construction. You could do a deal with the insurance company to use it. You could raise it to the required height on the existing concrete pylons.
Clive: We’ll need to get advice on this and let you know our decision.
Asquith: I’m going away on holidays in the next couple of weeks and I’d like to know where we’re up to before I leave.
Clive: We’ll do our best. We’re at the point where we need to make a decision. We’re happy to help you, but we need a long term commitment here. We’re not going to put up a building like that if you’re not prepared to at least exercise your option under the lease. If you leave the site, it would be hellish to try and lease a building like that.
Asquith: We’ve got plenty of work on at the moment and plenty of upcoming contracts. We have the joint venture with Steve Mitchell. We’re in the box seat for the Fourth Generation Train contract. It doesn’t matter who wins the principal contract; we’ll get the sub-contract work from them. We intend to have a long term relationship with you as tenants, but we need this building.
Clive: That’s all well and good, but we’re not going to put up a building and have you turn around and say you don’t want it.
Asquith: That won’t happen.
Clive: We’ll think about it. If we build, we want you to exercise the option.
Asquith: Yes, yes, we understand that.
Clive: We are thinking of taking a cash settlement on the insurance. It would be good to pay off part of our mortgage.
Asquith: You have to put up a building under the lease anyway. It may as well be the one we want.
Clive: Well, maybe we don’t have to. We’ll need to get advice on that. Maybe we could reduce our mortgage.”
Mr Asquith’s account of the meeting was that it addressed (a) Transform’s receipt of a structural report on the building and safety measures undertaken; (b) a sketch Mr Ness created of a building which incorporated steel framework which Kelrit wished to use to create a replacement building; and (c) the lease of shed 8. There was no discussion of long term leases, of renewal of the option, or of the fourth generation train project.
Mr Ness’ account was to similar effect. He stated that his recollection was that there was no discussion of (a) Transform staying at 50 Clyde Street after the end of the lease or making a commitment to do so; (b) Kelrit taking a cash settlement as an alternative to building; or (c) a specific plan to move the five axis machine into the building.
(g) Ms Hawkins and Mr Asquith
Ms Hawkins’ evidence is that about a week after the 7 September meeting she visited Mr Asquith’s office and had a conversation to the following effect:
“Ralph:          “Have you come to a decision about the new building yet?”
Me:“No, not yet. We can’t just put up a new building unless you’re going to be here. We need to get advice on that.”
Ralph:            “Yes, we will. Yes, we understand that.”
Mr Asquith had no recollection of this meeting.
(h)       The Hawkins meet Paul Trisley
Both Mr and Ms Hawkins gave evidence that they saw their solicitor in late September or October 1998. It was after that meeting that they decided to rebuild the destroyed part of the Clyde Street main building. Mr Paul Trisley is now deceased. A file note of his has been produced which confirms that a meeting occurred but is not on its face clear as to the date. I should indicate in passing without recounting the evidence on the matter, that I am satisfied that the note was probably created in September or October 1998. The note itself is not completely decipherable. It does refer to “reconstruction”. I am not, for reasons of illegibility, prepared to find (as the applicant presses on me to do) that the note records the following: “reconstructed on their representation that they would continue the lease”.
Both Clive and Renee Hawkins gave evidence that Mr Trisley was told that Transform had agreed to exercise its option if Kelrit rebuilt. In cross-examination Renee Hawkins indicated that at the time they went to see Mr Trisley, she considered that Transform was obliged to exercise the option: “I saw that as more or less a verbal contract, if you like, that that is what was going to happen come that date”.
The decision to rebuild was, to Mr Hawkins, the “common sense option” suggested by Mr Trisley of putting up the building “required by Transform”.
(i) The 26 October telephone conversation: Ness – Clive Hawkins
In his affidavit Mr Ness recounted a telephone conversation with Clive Hawkins concerning the rebuilding in which the installation of sprinklers was discussed, that subject being related to the availability of insurance. Mr Ness deposes that he said:
“Our likelihood of taking up the option on the lease is unlikely if the sprinklers don’t go in.”
In cross-examination and prior to having his attention drawn to this passage Mr Ness denied categorically that the subject of the option had ever come up in conversation between himself and Mr Hawkins and Ms Hawkins. He went so far as to say: “I’m clear on that”.
Clive Hawkins has denied that Mr Ness made any comment to him concerning the option of the character deposed to by Mr Ness.
Mr Ness produced what he said was a contemporaneous note of his conversation of the 26^th. That note made no reference to the option or to the likelihood of it being taken up. However, it recorded the following:
“I said if no sprinkler system installed we would be uncomfortable [with] new long term lease – in case insurance becomes a problem after 1 year (5% likelihood according to Allan Turner). Clive didn’t seem concerned by this.”
The veracity of this note is in issue.
(j) Design and Construction of the new building
After the decision to rebuild was taken, Clive Hawkins spoke to Strath Castle, the loss adjuster. He informed him that Transform had indicated the kind of building it wanted (including the eight metre ceiling) and that the dismantled steel frame was to be used. Mr Castle in turn engaged an engineering company to be the principal engineer for the project. Mr Compton of that company engaged a civil engineer, Paul Clarke to handle both the structural aspects of the demolition work to be done and to prepare the plans for the replacement building.
Between September and December 1998, Mr Clark worked on the design of the building, meeting with Mr Asquith at site inspections on “numerous occasions” and having numerous conversations with him concerning the design of the building. In his affidavit Mr Clarke listed a range of matters relating to the design of the building (including height and use of the steel frame) on which Mr Asquith provided him with instructions.
On 7 December, Clive and Renee Hawkins attended a meeting with Mr Ness and Mr Asquith to discuss details for the proposed steel frame building. This was followed by a second meeting on 10 December which was attended as well by Mr Clarke, Mr Compton and several others. The purpose of the meetings was to agree matters so that instructions could be given to finalise the plans. Both Ms Hawkins and Mr Clarke have given evidence that Mr Asquith gave almost all the instructions and details relating to design matters. This second meeting was the first occasion on which Mr Clarke met Mr and Ms Hawkins. Ms Hawkins kept records of both meetings. It is accepted by the applicant that no mention of the option was made at either meeting.
Mr Asquith’s evidence is that at each meeting Transform’s input was essentially limited to matters such as lights, windows and water supply.
Detailed drawings were then prepared by Mr Clarke and building and development applications were lodged with the Newcastle City Council on about 21 January 1999. Development approval was received on 7 May 1999 and construction commenced almost immediately (a tender having previously been selected).
(k) February 1999: Asquith and Ness
It is Mr Ness’ evidence that in February 1999 it had been decided that “we had no need for the building which was being constructed by Kelrit”. The reason given for this was that, since September 1998, Transform had not been awarded any significant contracts. He described a conversation with Mr Asquith as to whether they should terminate the lease because rebuilding would not be completed within six months. It was decided to stay on and to sublease the building. Mr Asquith is recorded as saying he would let Kelrit know what they were doing. Mr Asquith agreed in cross-examination that while sub-leasing of the building was raised with the Hawkins at a meeting in June 1999, it was not indicated to them until November 1999 that the building was neither needed nor required by Transform.
(l) The June meeting
By mid-June 1998 the construction of the building was well advanced, according to Mr Hawkins. At Mr Asquith’s request a meeting was held with at least Clive and Renee Hawkins around this time. There is inconsistent evidence as to whether Mr Ness was there. Both of the Hawkins deal with this meeting in their affidavits. Neither Mr Asquith nor Mr Ness do.
The Hawkins’ evidence in substance was that Mr Asquith told them the joint venture with Mr Mitchell involving the five axis machine was not going ahead; that they would not need the building for that purpose; and that they would like to sub-lease it for a short term. He indicated, nonetheless, that they had a lot of work and would want to use the building in the future.
Mr Asquith in cross-examination indicated he could not recall most of what was discussed, although he could recall that the Hawkins had no problem with Transform sub-leasing the building.
(m) The 23 (or 24) November telephone conversation: Asquith – Ms Hawkins
Ms Hawkins gave evidence that she was telephoned by Mr Asquith on about 23 or 24 November 1999 and that Mr Asquith said to her words to the effect:
“Can you come over to our offices and meet with Brian and I to discuss us taking up a new lease? We’re not really interested in taking up an option for another five years. Our plans have changed. We’ve had no success in sub-leasing the building and we’d like to make an alternative offer. Can you come alone because I don’t want Clive to be present. I know what his reaction will be and I’d rather be able to discuss this in a business-like fashion without heated discussion. You can discuss it with Clive and then get back to us.”
Mr Asquith acknowledged that he did call Ms Hawkins, and in his affidavit he did not dispute any part of her account of the conversation. In cross-examination he said he could not recall what was said.
(n) The 26 November meeting
Ms Hawkins met with Mr Asquith and Mr Ness at Transform’s offices on 26 November 1999. Her account of their conversation was as follows:
“Ralph:          “Our plans have changed. The joint venture has fallen through and it doesn’t look as though we’re going to need to use the building. We’ve had no luck in sub-leasing it. We’ve made enquiries with other sites and it looks as though we can get a better deal elsewhere. We’ve been speaking to Lanes about leasing the premises a couple of doors down from here at a much lower rent. On top of that, they’ve offered us six-months free rent if we move in there. You’d be aware that there’s a lot of industrial property for lease at the moment and we have been sending out letters to find out about alternative premises.”
Me:               “Oh, my god. Well, look, I’ll talk to Clive for you. I’ll do the best I can. You’re our major source of cash flow. We’ve built this building for you, and now this will really affect our cash flow. Clive’s not going to be happy about it. You said you were going to stay on here and that you had future plans at the site. I can’t believe you’re thinking about moving elsewhere. We’re relying on you.”
Ralph:            “We wanted the building before, but plans change.””
At this point, Ralph handed me a copy of the letter that Transform had apparently been forwarding to prospective landlords.
Ralph:            “We’ve leased a site at Cardiff near Clyde Engineering to carry out the Fourth Generation Train project, which we won. It is cheaper for us to have the operations at one premises and not to have to pay transportation costs. We plan to do a similar thing with our work for our Victorian contract.”
Me:                 “You’ve been good tenants in the respect that you’ve always paid on time and we don’t want to lose you as tenants. I’m not sure what our position is, but I’ll speak to Clive and get back to you as soon as I can.””
Mr Asquith’s account of the meeting was in the following terms:
“The meeting was short. In the course of it there was an exchange to the following effect:
Me: Our lease of this premises expires on 30 September next year. We have put out a fax to various real estate agents and landlords to see what is available in the market. This is a copy of our standard fax. I’ll send you more details about what we’d like for the existing building. Could you think about it and get back to me as soon as you can with what you are prepared to do.
Renee: I’ll have to talk to Clive about it.
I do not recall talking to Renee Hawkins about the new building individually, or a joint venture, or plans changing, or a lease at Cardiff (there has never been such a lease). I considered the 1996 lease covered all buildings both new and old.
I did refer to a site at 56 Clyde Street that we were investigating.
I recall Renee did not say anything to the effect of:
(a) “we’ve built this building for you”, or
(b)“you said that you were going to stay on here and that you had future plans at the site. I can’t believe that you’re thinking about moving elsewhere. We’re relying on you”.”
Mr Ness’ evidence was to like effect.
(o) Later Negotiations
On 29 November Mr Hawkins wrote to Ms Hawkins confirming that Transform was currently investigating building lease alternatives. The letter outlined what were Transform’s requirements by way of space, rent, and duration of lease should it remain at 50 Clyde Street. It was further indicated that Transform wished to make a firm decision by the end of the year and sought a response from Kelrit as soon as possible should it wish to consider Transform’s proposal.
Ms Hawkins, who said that at this time she was “essentially in damage control trying to salvage what [she] could from the situation”, prepared a counter-offer for Transform. It stated (in part):
“As Transform Composites no longer requires the new Shed 13 building which was erected specifically to your requirements and on your request, Kelrit proposes that a $77,000.00 p.a. reduction be made to your total rental figure of $324,132.00p.a.”
Mr Asquith did not respond to Ms Hawkins counter-offer until 12 January 2000. He rejected the terms proposed; he indicated that he had “two significantly more attractive offers on the table; he proposed a “maximum lease liability” Transform could accept at 50 Clyde Street; and he sought a response before 21 January 2000.
Kelrit did not respond to this letter. It sought legal advice in relation to the matter in late January 2000.
(p) The letter of demand and Transform’s response
On 27 June 2000 Kelrit’s solicitors wrote a letter of demand to Transform. It referred to Transform’s proposal not to renew the lease and went on (in part):
“Our client views this intimation by you with great concern. On two occasions, after part of the demised premises were destroyed by fire, Mr Asquith on behalf of your company, represented unequivocally to representatives of our client, that if our client rebuild sheds 13 and 13A to your specifications, you would exercise the option to renew the lease. Acting on the faith of these plain representations, our client built the shed now known as shed 13 to your specifications. It would not have done so had it not believed, as it was entitled to do, that you would exercise the option. It is not to the point that some of the demised premises may now be surplus to your requirements or that you might be able to obtain cheaper accommodation elsewhere.”
Mr Asquith responded on 30 June 2000, his letter indicating that:
“Your statement that we “represented unequivocally” to your client that we would renew the lease and claim that we engaged in “misleading and deceptive conduct” is denied. In fact we rejected the alleged representation when it was made by your client to our directors.
Kelrit sought input from our company regarding the reconstruction of Sheds 13 and 13A as approximately two years remained on the existing lease. In our opinion the building that was constructed is simply a modernised version of what was destroyed and is basically a standard industrial factory building.” Emphasis added.

The original of the 27 June letter of demand is in evidence. It is clear that that letter had hand written notations on which had been rendered quite illegible by erasure. It is equally clear on the evidence that those notations were on the letter at the time it was first inspected by the applicant’s solicitor at the premises of the respondents’ solicitor. One of those notations contained a circle around the word “two” in the first line of the paragraph quoted above and the word “once” was marked beside it in the margin.
The respondents’ solicitors later wrote to the applicants’ solicitors acknowledging that the notations had been “inadvertently lost” and they indicated that they had been instructed by their clients to agree that the notation referred to above was as I have described it.
Interrogatories were later administered. Mr Ness and Mr Asquith were each asked:
“Did you make any hand-written notations on the original letter, a copy of which is annexed and marked “D” (“the Document”)?”
In each case Mr Asquith and Mr Ness answered in precisely the same terms:
“I do not recall making any hand-written notations on the original of the Document, a copy of which is annexed to the request for interrogatories and marked with the letter “D”.
Both were cross-examined at some length on the notations and their authorship.
Mr Ness gave evidence that when the original letter of demand was received by Mr Asquith they met to discuss it. He said he saw the original letter at that time and saw it next about a year later at their solicitors’ office. He could not recall whether it had the annotations on it on the latter occasion.
I note in passing that the applicant submits that Mr Ness is the likely author of the notations.
(q) Other matters
Mr Ness expressed the view that the rent payable under the 1996 lease (which was about one third more than that payable under Transform’s earlier lease) was above market rates.
Mr Hawkins accepted in cross-examination that there was a “glut of space” in the rental market by 1998; that the lease with Transform had a floor so that the rentals could not be reduced; and that the 1996 lease was providing above market rentals.
Distinctly, Mr Asquith was asked in cross-examination whether Transform ever wanted the new building. His ultimate answer to this was “No, we didn’t at any stage need this new building”. Mr Clarke gave evidence that that, at a site meeting with (amongst others) Mr Asquith and Mr Ness on 4 September 1998, Mr Asquith said:
“… well I’ve got to get my business going again as soon as possible. We need the new building. We need to be able to carry out our operations.”
Ms Hawkins similarly gave evidence that at the 7 September 1998 meeting Mr Asquith stated that “we need this building”. This was said in the context of his observing that Transform had “plenty of work and … upcoming contracts”.
3. Matters of Credit
Unsurprisingly given the conflict of evidence, each side has challenged the credit of the principal witnesses of the other. It is appropriate that I indicate at the outset my own views of the witnesses.
Clive Hawkins appears to be a person who is both irascible and blunt. I do not consider, though, that these qualities were of particular significance in his dealings with Mr Asquith and Mr Ness beyond being an occasional irritant. While I consider aspects of his evidence to be unreliable (usually because it was coloured by his own, idiosyncratic view of things), I do not consider him to have been an untruthful witness.
Renee Hawkins I accept as a witness who tried conscientiously to give truthful evidence. I consider she was apprehensive about Kelrit’s financial circumstances. Her apprehension, I consider, coloured her actions.
Mr Asquith I consider to be quite unreliable. He was both obstructive and argumentative in giving evidence. I do not consider his second affidavit to be the genuine product of late recall. Rather, it was calculatingly deceptive. The inconsistencies in his evidence and the general tenor of his evidence left me in no doubt that it would be unsafe to rely upon his evidence in matters of significant dispute unless independently corroborated.
I do not regard Mr Ness’ evidence as capable of providing independent corroboration of Mr Asquith’s. His evidence was unreliable in what I would describe as strategic matters. I consider it probable that both Ness and Asquith have sought to present a common and contrived front in this matter.
4. Submissions, Findings and Conclusions
I do not intend to précis in these reasons the lengthy written submissions put in by the parties that relate to factual matters. I will, though, highlight the following matters and contentions advanced by the respondents which they say tell against any finding that they made the representations and offer alleged.
These matters are:
(i)there were, at the time of the fire, over 25 months to run before the then lease expired and 22 months before any need to exercise the option arose;
(ii)the rental under the lease was at above market rates; it could not be reduced; and there was other space available;
(iii)there was not work coming in at the end of 1998, a matter of significance to Transform as a “contract manufacturer”;
(iv)it was unlikely that the joint venture and the five axis machine were seen as having such importance as to suggest a need or an intention to relocate;
(v)notwithstanding the documentation of the leases the alleged representation/offer was not itself documented; and
(vi)Kelrit took no steps for a period of almost six months after Transform’s final offer in January 2000 before it raised formally the question of non-exercise of the option.
For my own part I am satisfied that the representation and offer alleged were made by Mr Asquith (to the knowledge of Mr Ness) at the 7 September meeting and that later actions of the parties were consistent (a) with Kelrit’s reliance on the representation and acceptance of the offer and (b) with Transform’s acting in furtherance of the representation/offer by participating in the design of the building to suit its continuing purposes as lessee of the main building.
I am not satisfied that such a clear and unequivocal representation or offer was made prior to that date, though I consider what was said by Mr Asquith on 18/19 August was likely to have created an expectation that such a representation/offer could be forthcoming.
At the time of the fire, debt reduction was a particular concern of Renee Hawkins. I am satisfied that, whether or not she had an exaggerated view of the company’s plight, both she and Clive regarded the prospect of a cash settlement with their insurer after the fire as an available and attractive means of debt retirement. I am equally satisfied that the prospect of their taking a cash settlement was early brought home to Mr Asquith by Mr Hawkins and that this probably occurred on 18 August 1998. I reject Mr Asquith’s second affidavit account of when the issue of a cash settlement was raised.
I equally reject Mr Asquith’s account of there being no mention of the option at the 19 August meeting. There is a body of evidence indicating that in the period immediately following the fire Mr Asquith was making statements to the effect that he had to get the business up and going again as soon as possible and that the new building was needed. I refer, for example, to Mr Clarke’s evidence on this matter and also to Clive Hawkins account of the later 7 September meeting. I consider it more probable than not that faced with Clive Hawkins’ indication that Kelrit wanted a long term commitment before it would rebuild, Mr Asquith made statements which were designed to assuage Clive Hawkins as to Transform’s intentions and that those statements had the general character attributed to them by Clive Hawkins in his evidence of the 19 August meeting. I equally consider it probable that mention was made of relocating the five axis machine for the above purpose of reassurance.
However, I am not satisfied that what was said on 19 August was so sufficiently clear and unambiguous as to constitute an offer or representation that if Kelrit rebuilt to Transform’s specifications and to accommodate its requirements, Transform would remain in possession for the balance of the term of the lease and would agree to exercise the option. Expectations were being created; prospects and reassurances were being proffered; but definite and unqualified representations and commitments were not being made by Mr Asquith.
I do not regard Mr Asquith’s 20 August letter as throwing any useful light on the representations made and expectations that might reasonably have been created by the 19 August exchange. I reject his statement that the letter was his “notes” of what had been discussed. It was a practical “way forward” letter building on what had been said. It was consistent with there being no definite offer at that stage to exercise the option. But paragraph 5 of the letter (relating to liaising with Kelrit in relation to building reconstruction) was quite consistent with furthering the expectation of a continuing relationship on the site.
I do find that sometime in late August Mr Asquith told Clive Hawkins that he had legal advice to the effect that Kelrit was obliged to put up a new building. Asquith’s evidence on what he said and what he knew to be the reality was, to say the least, unconvincing. I do not consider that he believed at any stage that Kelrit was obliged to rebuild. And whatever doubts the Hawkins may have had on the question of their legal obligation to rebuild was, I infer, dispelled at their meeting with their solicitor in late September or early October.
I should note in passing, as I have indicated above, that I do not consider Mr Asquith’s second affidavit (dealing with his late August conversation with Mr Hawkins) to be the genuine product of late recall. I have disregarded its contents.
I accept that the substance of the 7 September meeting was as described by the Hawkins and that, in consequence, both the representation and the offer were made to agree to exercise the option if the building was rebuilt as Transform required. I equally accept the role ascribed by Mr Hawkins to Mr Ness in this meeting relating to the use of the steel frame building; to the relocation of the joint venture; and to the 8 metre height requirement for the building. I reject the contrary evidence of Ness and Asquith. I should add that I find that the relocation of the five axis machine was a matter of significance and preoccupation for Ness and Asquith at this time. Notwithstanding that the joint venture proved in the event to be short lived, it probably explained a deal of the actions of present relevance taken by Transform in August/September 1998.
I am satisfied that after their meeting with their solicitor, the Hawkins decided to rebuild and they did so because of the representation and offer made to them concerning the option. It is quite misleading to suggest, as the respondents attempt to, that what the Hawkins did was to rely simply on the advice of their solicitor. The acceptance of that advice was predicated on the making of the representation and offer.
I accept Mr Clarke’s evidence as to the nature and extent of Mr Asquith’s participation in the design of, and in the giving of instructions for, the new building. I equally am satisfied that the steps taken by Mr Asquith and Mr Ness in that regard were in effectuation of what was contemplated by their representation/offer given Kelrit’s agreement to rebuild. The building was being designed to meet their requirements and to their specifications.
I do not accept Mr Ness’ account of his telephone conversation with Clive Hawkins on 26 October 1998 in which reference was allegedly made to the “likelihood of taking up the option”. I likewise do not accept the accuracy of what has been proferred as Mr Ness’ file note of that conversation. I have already indicated my views on Ness’ credit. I accept Mr Hawkins’ disavowal of there having been any mention of the option and I agree generally with the applicant’s submissions on this matter.
It is unnecessary for me to make any finding as to whether or not Mr Ness and Mr Asquith had decided in February 1999 that they had no need for the new building.
I accept that at the June 1999 meeting with the Hawkins, Mr Asquith indicated that the joint venture was not going ahead and he raised the question of sub-leasing. I also am satisfied that he reassured the Hawkins as to Transform’s own future need for the building.
Whether or not Mr Asquith foreshadowed to Ms Hawkins in the telephone conversation of 23 or 24 November that Transform had changed its plans (I consider it likely that he did), it is clear that at the 26 November meeting Mr Ness and Mr Asquith repudiated the commitment and falsified the representation I have found they made on 7 September 1998 and which had been acted upon subsequently both by themselves and by the Hawkins. I am satisfied that at that meeting, while not making direct reference to the option, Ms Hawkins did say words to the effect that “We’ve built this building for you … You said you were going to stay on here … We’re relying on you”.
The course of the subsequent negotiations and the lack of insistence by the Hawkins that Transform honour its commitment seem, at first blush, somewhat surprising. I am satisfied, though, with Renee Hawkins’ explanation that she saw no advantage in attempting to pressure or antagonise Transform as she regarded their tenancy as crucial to Kelrit’s financial position.
Legal advice was sought in late January 2000. The letter of demand was sent after the time had passed for the exercise of the option.
I am reinforced in the view I have taken of the 7 September meeting by the notation that was made and then erased on the letter of demand. It is proper to infer in the circumstances that Mr Ness or Mr Asquith was the author of that notation and that it constitutes a clear admission by Transform that the representation alleged was made. I would have to say that their evidence on this matter was quite unsatisfactory and, in Mr Asquith’s case, evasive and obfuscatory.
Accordingly I find that the representation propounded by the applicant was made, as was the claimed contractual offer which was accepted on Kelrit’s proceeding to construct the building as required.
It is unnecessary that I speculate as to why Asquith and Ness acted as they did in late 1998 after the fire. There may well have been rational commercial reasons for not making the commitment to Kelrit that I have found that they did. Nonetheless I am well satisfied that that commitment was made. It clearly was a commitment from which they later wished to resile.
A Binding Contract?
The contract for which the applicant has contended was an oral one the essential terms of which were that, if Kelrit rebuilt the premises to the specifications and to meet the requirements of Transform, Transform would remain in possession of the premises for the balance of the term of the lease and would exercise the option. The contract so propounded was of that not uncommon variety in which one party’s promise contains an express or implied request that the party to whom the promise is addressed do an act or fulfil a condition. The doing of that act or the fulfilling of the condition by the promisee in reliance on the promise will usually constitute consideration for the promise and create a binding contract: see Beaton v McDivitt (1987) 13 NSWLR 162 at 182-183.
The facts as I have found them lead inexorably to the conclusion that there was such a contract in this matter. Nonetheless Transform submits that the contract was either invalid or else unenforceable because it did not comply with the writing requirements of either s 23C or s 54A of the Conveyancing Act 1919 (NSW). The terms of these sections are (in part) as follows:
“23C Instruments required to be in writing
(1)      Subject to the provisions of this Act with respect to the creation of interests in land by parol:
(a)      no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,
…
54A Contracts for sale of land to be in writing
(1)      No action of proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or not thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged.”
Transform’s submission as I understand it is that, as an option to renew a lease is itself an interest in land, the grant of an option must be in writing as must any variation of the option agreement itself. Reliance was placed upon the observations of Williams J in Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 122-123 to the effect that where a contract is required to be, or to be evidenced, in writing a variation of such a contract is likewise required to be, or to be evidenced, in writing if it is to be effective. It is contended that, as the effect of the oral contract would be to transform an option to renew into an obligation to renew, it operates as an oral – and ineffective – variation of the 1996 lease.
The applicant’s submissions are first, that the agreement as to the future exercise of the option was an executory one and, as has been held by a majority of the Court of Appeal of New South Wales in Baloglow v Konstanidis [2001] NSWCA 451 at [159] – [192], s 23C does not apply to such a contract; secondly, accepting that the grant of an option created an equitable interest “measured by what a court of equity would decree in an action for specific performance”: Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127 at 134; that grant was evidenced in writing in the 1996 lease and the oral contract did not in any way vary that interest or create any new interest; thirdly, the oral contract involved no contract for the sale or other disposition of any interest in land as Kelrit was already obliged to grant a renewal if properly requested by Transform so to do, and what Transform was now agreeing to was to exercise the right it had as and when the time for its exercise fell due under the lease; fourthly, and in any event, in light (a) of Transform’s representations as to what it would do if Kelrit rebuilt, and (b) of Kelrit’s actions in reliance thereon, it would be unconscionable to permit Transform now to depart from the promises it made and to raise the unenforceability of that promise: Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610.
For my own part I consider that, as this matter is being determined in New South Wales, I ought accept the approach taken in Baloglow’s case to s 23C and s 54A of the Conveyancing Act. As the oral agreement is executory in character, s 23C can have no application to the matter. Insofar as concerns s 54A, I am not satisfied that the oral contract operated as a variation of the original option agreement. That agreement gave to Transform a right to choose whether or not to take a renewal. Under the oral contract Transform committed itself as to the choice it would make. The option itself was not thereby varied. Rather the oral contract “fettered” permissibly the choice Transform would otherwise have enjoyed. Importantly, the contract was not for the disposition of any interest in land. Kelrit’s obligation to Transform remained unchanged to grant a renewal when requested so to do under the lease. Transform’s interest in consequence of the option likewise remained unchanged: it remained “measured by what a court of equity would decree”.

It is unnecessary that I go on to consider whether, distinctly, Transform would in any event be estopped (a) from relying upon the Conveyancing Act, or, (b) from resiling from the promise upon which it induced Kelrit to rely. However I would make the observation that the case, on my findings, would seem to be a quintessential one of equitable estoppel: cf Robertson, “The Statute of Frauds, Equitable Estoppel and the Need for ‘Something More’” (2003) 19 Jo Contract L 173.
The TP Act Claim
In light of the representation I have found to have been made by Transform on 7 September 1998, it is accepted by the respondents that I must find that Transform’s conduct was then misleading or deceptive as their evidence was that at that time they had no intention of exercising the option. I have already found that the Hawkins, hence Kelrit, relied on the representation.
DAMAGES
Introduction
Kelrit seeks in the alternative damages for breach of the oral contract and damages under s 82 of the TP Act. It acknowledges that these are inconsistent remedies and that it will in this case have to elect between them “before judgment”: Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 at 37; Tang Man Sit v Capacious Investments Ltd [1996] AC 514; and see generally Mason and Carter, Restitution Law in Australia (1995), [2304]ff; Goff and Jones, The Law of Restitution (6^th ed, 2002). I have, in consequence, been asked to assess damages on both basis but not to make orders against the respondents until an election has been made.
1. Factual Matters
(a) The Disposal of 50 Clyde Street
Transform’s lease expired on 30 September 2000. Thereafter it is Clive Hawkins’ evidence that he attempted to find a long term tenant for the property. He received no offers though he did reduce the asking rent. A letter written on behalf of a prospective purchaser of 21 July 2001 expressed the opinion that the “property … as it currently stands … will be very difficult to lease … . To lease the property, you would have to spend hundreds of thousands of capital words [sic] and maintenance”.
From 1996 onwards Kelrit was looking to sell its properties. In October 2000 it obtained a marketing report from Colliers Jardine in relation to 50 Clyde Street which expressed the view that a sale of the property with vacant possession might realise a price within the range of $1.4 to $1.8 million. It was recommended that it be put to auction.
A like recommendation was made in a marketing proposal of Creer & Berkely of April 2001 which estimated the sale value in the range of $1.3 million to $1.6 million.
At much the same time, Dowling Commercial made a marketing submission to Kelrit which led on 19 April 2001 to the entry into an auction agency agreement for the sale of 50 Clyde Street. Dowling had expressed the view that the property had “a value in today’s market of between $2.7 million to $3.0 million”. The property was marketed between April and June 2001 when it went to auction. No bids were attracted. A report of 24 August indicated that only one prospective purchaser showed any genuine interest in the property.
Consideration was given to subdivision of the land so as to permit sale of what was known as the Stelform land (Stelform Pty Ltd had a lease of it). It was sold in September 2001 for $267,500.
Other agents had been marketing the property in the latter half of 2001. Almost no interest was shown in it. One offer was received and negotiations were entered into. No sale was forthcoming.
The balance of the property was not sold until March 2002 for $1.4 million.
2. Matters of Opinion/Expert Evidence
The principal opinion evidence given as to Kelrit’s loss for the purposes both of the contract and of the TP Act damages claims was that of Mr Parsons (a valuer) and of Ms Maybury (an accountant). It will be necessary to refer to it in detail below. However, there is a number of other particular matters which are the subject of expert evidence to which it is necessary to refer and which relate to the TP Act damages claim.
(a) Remediation of the Clyde Street site
There is significant disagreement between the parties as to what the costs would have been of remediating the site after the fire so as to permit its continued occupation. The point of focus of that disagreement was a brick wall separating Shed 13D from Sheds 13B and 13C which remained standing after the fire and which was later demolished consequent on the decision to construct the new building. The respondents contend that the brick wall had to be demolished and rebuilt and that this remediation cost would have been $215,000. The applicant contends that the wall could have been repaired and at a cost of no more than $50,000.
Each of the parties called engineering evidence on the question of the brick wall and remediation. Kelrit called Mr Paul Clarke (to whom reference has already been made). Mr Clarke had carried out a structural inspection of the brick dividing walls on 27 August 1998 shortly after the fire. His report prepared for this proceeding stated in part:
“4.      Remediation of Damaged Premises
I have been asked to consider what would have been required to remediate the fire damaged building into a condition that was structurally sound and fit for continued occupation as part of what remained of so much of the building not damaged by fire. In my opinion:
(a)      The demolition of the existing brick walls adjacent of the area of the fire was not required and would have been uneconomic and unnecessary.
(b)      It was reasonably clear from my inspection of the brick walls that they required comparatively minor repair only.
(c)       I do not consider that any part of the roof over the 200m² (approx) section bounded by those brick walls required demolition. It too was undamaged and in a condition no less serviceable than the roof over the other parts of the building not touched by the fire.”
Mr Clarke annexed a Scope of Works to his report and indicated, further, that a quantity surveyor’s costing of it was in the vicinity of $50,000. He revealed himself in evidence to be thoughtful and professional in the answers he gave and in the opinions he expressed.
The respondent’s engineering evidence, given by Alan Willgoose (who also was a civil engineer) was of an entirely different order. Mr Willgoose attended the site in August 1998 pursuant to a request by Mr Asquith that he recommend any works which were necessary to make the premises safe as a result of the fire. At that time he did not form any opinion that the walls had to be demolished. I am unprepared to accept on the evidence he gave in cross-examination that he made any specific observations at that time as to damage to the brickwork.
Though Mr Willgoose has been advanced by Transform to provide an expert report and evidence, it is not at all clear what he was instructed to address in his capacity as an expert. The Scope of Work he annexed to his report “assumed [that the] dividing wall is demolished”. Neither his report or his affidavit addressed the question whether the walls in question could be repaired.
I do not intend to recount Mr Willgoose’s oral evidence. He attempted, in my view quite unconvincingly, to remedy the deficiencies of his affidavit and report. I do not consider that his evidence should be relied upon on the question of whether the demolition of the brick wall was required. On that matter, I accept the evidence given by Mr Clarke.
(b) The dismantled steel frame
It has been noted earlier in these reasons that (i) when Kelrit purchased the Clyde Street property in 1988 the purchase included the dismantled steel frame of an open portal building; and (ii) that steel frame was used (though not in its entirety) in the new building constructed after the fire.
It is accepted in this proceeding that Kelrit received a cash payment of approximately $118,000 from its insurer MMI for the steelwork used in the new building.
Sometime prior to 20 January 1999, Mr Strath Castle, (the loss assessor appointed by Kelrit’s insurer, MMI) had requested BJ Compton Building and Engineering Services to value the steel frame being supplied by Kelrit for the rebuilding at 50 Clyde Street. Such a valuation was provided on 20 January and was in the figure of $118,000. That figure was at “current rates” and was made up of the sums of $71,280 (being for the value of the steel by weight) and of $47,520 (for fabrication and delivery costs).
In a report to MMI of 4 May 1999, Mr Castle foreshadowed a recommendation that Kelrit be paid the above amount. In referring to the steel frame building, the report stated:
“Being a building of similar proportions to the area which was destroyed by fire the Insured put forward a proposal that it may be used in the new structure subject of course to an evaluation of its worth and its possibility of being of benefit. We put this to B J Compton Building and Engineering Services the consultants appointed on your behalf and they submitted an advice to us that is real value was $118,800.00. The benefit was that this steel or at least most of it could be used in the construction of the new buildings and it could be readily modified and therefore of distinct advantage to the overall costs of the construction of the new buildings following the fire. As advised this aspect was discussed and was examined closely by B J Compton Building and Engineering Services and as mentioned they value the materials which can be used at $118,800.00 and they confirm there is no doubt it is of significant benefit to insurers. We have also discussed the matter directly with the principals of Kelrit Pty Ltd but as far as they are concerned they are not prepared to negotiate this amount as they point out the steel which is not used has no value other than scrap. On the advice of the building consultants we will submit a recommendation for payment subject to your consideration.”
As I have earlier indicated Mr Clarke prepared the design for the new building using the steel frame between September and December 1998. Using Mr Clarke’s scope of work, Mr Compton provided an estimate of building costs to Mr Castle of $790,000 on 2 December 1998. He emphasised at the time that this was “a budget estimate only”.
Mr Hawkins gave evidence that he was happy to use the steel frame for the building as “we had no other use for it at the time and I thought that we could obtain some money from the insurer for that”.
(c) The “cash settlement”
The evidence given by Mr Bates, a senior executive with MMI, who would have had the authority to agree to a cash settlement if such had been sought by Kelrit was not particularly helpful. However it did indicate that the basic approach taken by him in evaluating opportunities to settle reinstatement claims for cash was to achieve a discount on the anticipated cost of reinstatement.
In its submissions Kelrit asks that I consider $900,000 to be the likely cost of reinstatement figure that would have been used; Transform contends that that figure would be a cost of between $800,000 and $900,000.
The evidence on the discount MMI would have sought is likewise not particularly helpful. Mr Bates’ evidence was, variously, that his rule of thumb was that he would hope to get “at least a 20 per cent discount on the reinstatement costs; that it could be even as little as 10 per cent; a 40 per cent discount would be “a good settlement from an insurance point of view”; he would not expect a client to accept a 50 percent discount; but his own calculations in this matter involved his use of figures ranging from 20 per cent to 50 per cent.
It was, in my view, clear from Mr Bates’ evidence that in negotiating a cash settlement he would exploit whatever advantage was available (including the insured’s financial position) to enhance the discount rate to be applied.
In this matter I have adopted $900,000 as the estimated cost of reinstatement of the 50 Clyde Street building. That figure was the one noted by MMI on its claim notification of 19 August 1998. Given the counterfactual and speculative character of the estimate I am being asked to adopt, and of the broad acceptance by both parties of the appropriate range, I consider the above figure to be an appropriate one.
The question of an appropriate discount is distinctly more problematic. I do not consider a figure less than 20 per cent would have been likely to have been applied. Having regard to the Hawkins own perception of Kelrit’s financial circumstances and to their reason for contemplating a cash settlement, I consider a discount figure greater than 20 per cent would have been achieved. The evidence on this issue being not helpful, I have opted for a figure of around 30 percent. This would result in a negotiated cash settlement of $630,000.
(d) Mr Parsons’ report and the rent-free period
In his valuation report tendered by Kelrit, Mr Ian Parsons included as an element in his calculations of the capitalised value of the market rental for 50 Clyde Street as at March 2002 a six-month rent free period which was described as a “rental incentive”. This reflected what was considered to be the rent free period given Transform in 2002 under its lease for the 56 Clyde Street premises. In his oral evidence Mr Parsons sought to reduce the rent free period to three months. His reason for so doing was that the relevant Memorandum of Lease for 56 Clyde Street provided (a) that the commencement date was to be “1 July 2000” and (b) that there was to be “[a] rent free period from execution of this lease until 30 September 2000”: emphasis added; although three months rent was payable “[o]n execution of this Lease” and the rental was to remain “paid three months in advance”. Mr Parsons’ inferred that the date of execution of the lease was 1 July, hence the rent free period was three months.
The signed lease that was tendered by Transform bears the date of 12 May 2000. The only other evidence that bears on this matter are several letters from a real estate firm relating to negotiations for the lease. I would merely note the following from one such letter of 18 January 2000. It states:
“Further to our recent discussions we confirm the Lessor is agreeable to a rental commencement date as outlined in your proposal of the 29^th November 1999.
We understand the rental commencement date as suggested by you would be as follows:
Lease commencement date – 1^st July 2000 or earlier if required. The Lessor is prepared to let you start relocating your business into the premises at any time once lease agreements are signed and exchanged. …
Rent commencement date – 1^st October 2000. Three months rent of $53,000 paid in advance on 30^th June 2000 and then $17,667 on 1^st October 2000 and each subsequent month thereafter. …”
I refer to this, not for the purpose of interpreting the lease, but for the purpose of indicating that the parties contemplated the possibility of occupation of the premises prior to the commencement date.
There is disagreement between the parties as to the appropriate rent free period that should have been used by Mr Parsons in making his calculations. The applicant submits that period should be three months being the difference between the commencement date of the lease (1 July 2000) and 30 September 2000 which was the terminal date prescribed in the Memorandum of Lease for the “rent free period”. The respondents submit that the proper period is six months which Mr Parsons first used. The effect of the difference between the two on Mr Parsons’ estimate of the market value of the property in March 2002 is $52,266.
I can see no justification at all for the six month period propounded by the respondents. If, as appears to be the case, the date of execution of the lease was 12 May 2000 then the actual rent free period that was able to be enjoyed would have been over four and one half months.
My own view is that on its proper construction the lease intended to provide a three month right to a rent free period which, because of the rental payment provisions, was, as Mr Parsons explained in his evidence, actually to be the last three months of the term. The significance of the lease making the rent free period run from the date of execution was to permit occupation in advance of the commencement of the lease in the event of early execution and without additional charge. This additional concession (which turned on a contingency the date of occurrence of which was uncertain) doubtless was of some value. What that value might have been was never taken up with Mr Parsons in evidence.
CONTRACT DAMAGES
Kelrit’s claim proceeds on the following premise. Kelrit rebuilt as requested by Transform; Transform exercised the five year option in 2000 and will remain a tenant until the expiration of the renewed lease; Kelrit sells the property at market value in March 2002 with Transform as a sitting tenant. The loss which is thus claimed has two components. The first is for rent foregone from 1 September 2000 to 31 March 2002 when the property was sold. The second is for loss in capital value, this being the loss arising from not being able to sell the property in 2002 as a property with a long term tenant. This latter loss does bring into account the consideration paid for the separate sale of the Stelform property.
The evidence put on by Kelrit in support of its claim was (i) a valuation report prepared by Mr Parsons and (ii) an accounting report (and later amendments) prepared by Megan Maybury, a chartered accountant. Both Mr Parsons and Ms Maybury gave oral evidence as a consequence of which certain changes were made to their respective reports. I will only make reference to their reports as amended.
No evidence (expert or otherwise) was put on by Transform contesting the approach, methodology and calculations of Mr Parsons and Ms Maybury.
Insofar as presently relevant, Mr Parsons’ report provided both estimated rental values for the period 1 September 2000 to 31 March 2002 and the estimated market value of 50 Clyde Street at 31 March 2002 on the assumption that Transform was then a tenant of Kelrit, it having exercised its five year option. Before referring to Mr Parsons’ calculations I should indicate that there is a question whether the rent that would have been payable under the renewed lease would have been subjected to CPI rental increases. Kelrit has submitted that “it is not entirely clear” whether it would have. Transform contends in contrast that the option agreement did not provide for CPI increases.
The lease makes provisions for CPI rental increases in cl 2.37A, the relevant review date for this purpose being the “anniversary of the commencement of the lease”: Item 5A of the Reference Schedule to Annexure A to the lease. But while the lease also makes provision (cl 2.37B) for the possibility of a rent review based on “the current market rent of the demised premises”, that possibility was expressly precluded in Item 5B of the Reference Schedule.
The option provision of the lease (cl 4.05) provided that the annual rent should be the amount “which would at the commencement of the renewed term be the current market rent” (a defined term) though it went on to provide that that the annual rent could not be less than “the rent payable during the final year of the term of the lease”: cf 4.05(v). A proviso to cl 4.05 was in the terms (inter alia) that “the date/s for the review of the rent shall be as specified in Item 5C [of the Reference Schedule]”. That Item provided:
“(Clause 4.05: Date/s for Rent Review in Renewed Lease:-
Inapplicable”
Clause 4.05 provided further that the renewed lease would be “subject to the same covenants agreements as provisions as are herein contained”. That clause made the renewed lease potentially subject to the rent review provisions of cl 2.37A (CPI Increases) and cl 2.37B (“current market rent”). Whether those provisions were to be included in the renewed lease turned on whether rent review dates were set for them in Item 5C, it being the provision that dealt with rent review “in Renewed Lease”. As noted above Item 5C set no rent review dates. For this reason the rental under the renewed lease was not intended to be subject to CPI increases under cl 2.37A. Accordingly, CPI increases will not be taken into account in calculating rent foregone.

Turning now to the two components of the contract damages claim, and disregarding CPI increases, the relevant calculations of loss were provided by Ms Maybury. They are based on uncontested figures provided in Mr Parsons’ valuation report regarding (i) estimated lost rental income for the period running from 1 September 2000 (when the original lease expired) to 31 March 2002 (when the 50 Clyde Street property was sold); and (ii) estimated capital value of 50 Clyde Street on the assumption that Transform had remained as a sitting tenant when the property was sold.
Ms Maybury’s calculations represented diagrammatically are as follows:

PAST ECONOMIC LOSS 10/1/2000
to
9/30/2001
$ 10/1/2001
to
3/31/2002
$ TOTAL
$

Estimated Rent
Less: Outgoings 316,297
100,701 157,715
52,472 474,012
153,174

Net income
Less: Actual income 215,596
- 105,243
- 320,839
-

Past Economic Loss
Less: Tax
Net Past Economic Loss 215,596
71,105
144,490 105,243
31,573
73,670 320,839
102,678
218,161

Add back: Tax at Current Rates 93,497

TOTAL GROSS LOSS 311,658

LOSS IN CAPITAL VALUE $

Value with Transform as sitting tenant
Less: Stelform property 1,710,000
248,812

Net Value 1,461,188

Value with vacant possession 1,400,000

LOSS OF CAPITAL 61,188

TOTAL LOSS 372,846

Interest (April 02 to Mar 03) 33,556

TOTAL LOSS INCL INTEREST 406,402

These two separate heads of damage are, in my view, proper expectation losses available to be claimed by Kelrit – subject to any available defence raised by Transform.
It is alleged by way of defence that Kelrit was obliged to, but did not, mitigate its losses of rent; that it did not between 12 January 2000 (when Mr Asquith rejected the terms of renewal proposed by Ms Hawkins) and the date of sale of the 50 Clyde Street property.
I have referred above to the evidence on the attempts to sell and to rent the property. It doubtless is the case that the sale of the property was the immediate interest of the Hawkins from October 2000 onwards. Nonetheless Mr Hawkins gave evidence that they were still seeking tenants; they reduced the rent; but no tenants were forthcoming. There is no documentary evidence of these efforts. I am, though, prepared to accept that they were made.
Accordingly, I reject the mitigation defence and, on the contract claim, award damages in the sum of $406,402 (subject to any variations for interest).
TRADE PRACTICES ACT DAMAGES
The premise of this claim is that but for the representation I have found was made by Transform and was relied upon by Kelrit, Kelrit would not have rebuilt but would have negotiated a cash settlement of its insurance claim. By rebuilding they lost that opportunity. I have indicated above that $630,000 represents what I consider would have been the likely negotiated cash settlement. I am satisfied and so find that the course that the Hawkins would have taken but for the representation is that of negotiating a cash settlement in that amount.
It is accepted by the parties, as it must be: see Marks v GIO Australia Holdings Pty Ltd (1998) 196 CLR 494 esp at 512; that it is necessary to compare the position in which Kelrit found itself by having relied upon Transform’s contravening conduct and the position in which it would have been but for that conduct. The making of that comparison in this case is not altogether straightforward. In the case of each of the positions to be compared there would have been or were receipts, expenditures and savings that would not have occurred in the case of the other position. The difficulty in making an estimation has been compounded by changes in the expert evidence adduced to remedy deficiencies in calculations and erroneous assumptions made.
In the end I consider it appropriate to approach the question of loss through a Table prepared by Ms Maybury and on which Kelrit relies. Save in one respect (noted below) I consider it adequately makes the comparison required in the circumstances albeit in a less than direct and, probably, in a somewhat distorting way. For reasons I give below I consider Ms Maybury’s conclusion would overcompensate Kelrit and I have made appropriate adjustments. To render the somewhat Delphic table comprehensible I should make the following observations by way of explanation.
(1) The Table takes into account actual receipts enjoyed by Kelrit up to the date of sale of the 50 Clyde Street property. These receipts were (a) the sum of $46,700 for a Cool Room (a matter not considered independently in these reasons); (b) the payment of $118,000 to Kelrit for the steel frame used in the reconstruction; (c) actual rent payments made by Transform from 18 August 1999 to September 2000; (d) the sum of $248,812 derived from the sale of the Stelform property; and (e) $1,400,000 being the sale price of the 50 Clyde Street property.
(2) The sum of $118,000 is in my view necessarily to be brought into account as a receipt that Kelrit actually had but which it would not have had if the building was not reconstructed. The circumstances of the reconstruction gave Kelrit the opportunity to obtain that payment. If reconstruction had not occurred it would not have had that opportunity. It would have retained the steel unused as it had done for well over a decade (notwithstanding its ongoing assets sale). There is no evidence of any possible other opportunity to dispose of the steel.
(3) Mr Parson’s has provided the valuation of the property on the assumptions that it has been remediated; reconstruction did not take place; and that it was untenanted. That valuation is $1,170,000. The notional cost of remediation is $50,000. I have indicated earlier in these reasons (when preferring Mr Clarke’s expert evidence to that of Mr Willgoose) why this is the appropriate figure to adopt.
(4) Mr Maybury’s calculations proceed on the premise that the negotiated cash settlement amount would have been applied to offset Kelrit’s mortgage so effecting a saving in interest. A net sum is given for the cash settlement in the Table as a means for taking account of receipts that would not have been had if rebuilding had occurred and remediation expenses that would have been incurred if rebuilding had not occurred.
(5) The Table makes various adjustments for taxation. While the appropriate rates of tax were questioned (and are now resolved) the adjustments themselves were not.
(6) The Table was prepared according to a scale which calculated the loss that would have been suffered depending upon the amount of the negotiated cash settlement. I have not reproduced the entirety of that scale but only the two points on it that bound the $630,000 cash settlement amount that I consider would have been reached. It also included a sum for interest as until March 2000 which I have not reproduced. I will leave the question of interest to be decided when orders are to be made.
Ms Maybury’s table is as follows:

LOSS OF INCOME $ $

Negotiated cash settlement
Less: Received for Cool Room
Less: Received for Steel 600,000
46,700
118,000 650,000
46,700
118,000

Adjusted Cash Settlement
Less: Remediation Costs 435,300
50,000 485,300
50,000

Net Settlement available to offset mortgage 385,000 435,000

Interest saved on mortgage (Oct 98 to Mar 02)
Less: Income Tax (3) 116,021
39,612 131,077
44,753

Net loss of interest
Rent from reconstructed premises (18 Aug 99 to Sept 00) (2)
Less: Income Tax (3)
76,408
53,738

19,086

86,324
53,738

19,086

Net rent from reconstructed premises 34,653 34,653

NET LOSS OF INCOME 41,756 51,671

Add back: Income Tax at Current Rates @ 30% 17,895 22,145

TOTAL GROSS LOSS 59,651 73,816

LOSS OF CAPITAL VALUE $ $

Premises remediated – no tenant @ valuation
Less: Stelform Property 1,170,000
   248,812 1,170,000
   248,812

Net valuation

Negotiated cash settlement
Less: Remediation costs
Less: Cool Room
Less: Steel

   921,188

   600,000
    50,000
    46,700
   118,000

   921,188

   650,000
    50,000
    46,700
   118,000

Total Forgone
Less: Actual Received
   385,300
1,306,488
1,400,000    435,300
1,356,488
1,400,000

LOSS OF CAPITAL NIL NIL

TOTAL LOSS     59,651     73,816

My own qualification to this Table is that, under the loss of capital heading, not only is no loss suffered but an actual benefit is derived of, variously, about $93,000 (at $600,000) and of about $43,000 (at $650,000). If the cash settlement was $630,000 that benefit would have been about $63,000.
The “net loss of income” on Ms Maybury’s figures for a cash settlement of $630,000 would have been in the order of $68,000. In consequence the total loss suffered would only have been about $5,000. I would have to say I do not find this a surprising outcome. In my view, the Hawkins were able both to dispose of the property and to secure other advantages by way of receipts (eg the $118,000 for the steel) and of savings such that their reliance loss was likely to be slight. It was their expectation loss that was likely to be the only loss of substance.
I would also add by way of comment that a bare comparison of Kelrit’s actual receipts and expenditures and of its notional receipts, expenditures and savings (by way of interest saved) produces a relatively similar result when account is taken both of Mr Parson’s valuation and of the actual total sale price of 50 Clyde Street.
On the TP Act damages claim I would award damages in the sum of $5,000.
PARTICIPATORY LIABILITY
Kelrit has sought findings against Mr Asquith and Mr Ness that they were involved in the contravention of s 52 of TP Act for the purposes of attracting personal liability under s 75B of the Act.
I am satisfied that each was knowingly concerned in the contravention I have found and would be prepared to order accordingly. I consider it unnecessary here to recount the evidentiary basis for this finding.
CONCLUSION
I will direct the applicant to make its election in light of these reasons and to file and serve proposed minutes of order within fourteen days of the date of these reasons.

I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate:
Dated: 3 July 2003

Counsel for the Applicant: Mr JV Nicholas SC with Mr C Dimitriadis

Solicitor for the Applicant: Mr M Trisley

Counsel for the Respondent: Mr T Lynch

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 10-14, 24, 25, 31 March 2003

Date of Judgment: 3 July 2003

PAST ECONOMIC LOSS	10/1/2000 to 9/30/2001 $	10/1/2001 to 3/31/2002 $	TOTAL $
Estimated Rent Less: Outgoings	316,297 100,701	157,715 52,472	474,012 153,174
Net income Less: Actual income	215,596 -	105,243 -	320,839 -
Past Economic Loss Less: Tax Net Past Economic Loss	215,596 71,105 144,490	105,243 31,573 73,670	320,839 102,678 218,161
Add back: Tax at Current Rates	93,497
TOTAL GROSS LOSS	311,658

LOSS OF CAPITAL VALUE	$	$
Premises remediated – no tenant @ valuation Less: Stelform Property	1,170,000 248,812	1,170,000 248,812
Net valuation Negotiated cash settlement Less: Remediation costs Less: Cool Room Less: Steel	921,188 600,000 50,000 46,700 118,000	921,188 650,000 50,000 46,700 118,000
Total Forgone Less: Actual Received	385,300 1,306,488 1,400,000	435,300 1,356,488 1,400,000
LOSS OF CAPITAL	NIL	NIL
TOTAL LOSS	59,651	73,816

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N613 OF 2001

BETWEEN:	KELRIT INVESTMENTS PTY LIMITED ACN 002 623 065 APPLICANT
AND:	TRANSFORM COMPOSITES HOLDINGS PTY LIMITED ACN 066 929 158 FIRST RESPONDENT RALPH ASQUITH SECOND RESPONDENT BRIAN NESS THIRD RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	3 JULY 2003
WHERE MADE:	CANBERRA (HEARD IN SYDNEY)

JUDGE:	FINN J
DATE:	3 JULY 2003
PLACE:	CANBERRA (HEARD IN SYDNEY)

LOSS IN CAPITAL VALUE	$
Value with Transform as sitting tenant Less: Stelform property	1,710,000 248,812
Net Value	1,461,188
Value with vacant possession	1,400,000
LOSS OF CAPITAL	61,188

TOTAL LOSS	372,846
Interest (April 02 to Mar 03)	33,556
TOTAL LOSS INCL INTEREST	406,402

LOSS OF INCOME	$	$
Negotiated cash settlement Less: Received for Cool Room Less: Received for Steel	600,000 46,700 118,000	650,000 46,700 118,000
Adjusted Cash Settlement Less: Remediation Costs	435,300 50,000	485,300 50,000
Net Settlement available to offset mortgage	385,000	435,000
Interest saved on mortgage (Oct 98 to Mar 02) Less: Income Tax (3)	116,021 39,612	131,077 44,753
Net loss of interest Rent from reconstructed premises (18 Aug 99 to Sept 00) (2) Less: Income Tax (3)	76,408 53,738 19,086	86,324 53,738 19,086
Net rent from reconstructed premises	34,653	34,653
NET LOSS OF INCOME	41,756	51,671
Add back: Income Tax at Current Rates @ 30%	17,895	22,145
TOTAL GROSS LOSS	59,651	73,816

Counsel for the Applicant:	Mr JV Nicholas SC with Mr C Dimitriadis
Solicitor for the Applicant:	Mr M Trisley
Counsel for the Respondent:	Mr T Lynch
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10-14, 24, 25, 31 March 2003
Date of Judgment:	3 July 2003